BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         WILLIAM E. SWANSON, SR.,
 
         
 
             Claimant,
 
                                                 FILE NO. 783926
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         OSCAR MAYER FOODS CORPORATION,
 
                                                 D E C I S I O N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         _________________________________________________________________
 
          
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by William E. 
 
         Swanson, Sr., claimant, against Oscar Mayer Food Corporation, 
 
         employer, hereinafter referred to as Oscar Mayer, a self-insured 
 
         defendant, for benefits as a result of an alleged injury on 
 
         January 8, 1985.  On March 12, 1987, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              Claimant is alleging in this proceeding that he injured his 
 
         right thigh, left thigh, right foot and toes, right hand, left 
 
         hand and low back from a chemical burn at work.  Claimant seeks 
 
         permanent partial disability benefits for alleged permanent 
 
         functional impairment.  Defendant denies that the chemical burn 
 
         caused any of claimant's permanent physical problems.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of the hearing.  Oral 
 
         testimony was received during the hearing from claimant on the 
 
         following witnesses: Annetta Swanson and Vernon Keller.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations: 
 
         (1) on January 8, 1985, claimant received an injury which arose 
 
         out of and in the course of his employment with Oscar Mayer; (2) 
 
         claimant has been paid temporary total disability benefits and 
 
         does not seek additional temporary total disability or healing 
 
         period benefits for the work injury; and, (3) all requested 
 
         medical benefits have been or will be paid by defendant.
 
         
 
              The prehearing report lists the following issues for 
 
         determination in this decision:
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and
 
         
 
              II.  The extent of claimant's entitlement to weekly 
 

 
         
 
         
 
         
 
         SWANSON V. OSCAR MAYER FOODS CORPORATION
 
         Page   2
 
         
 
         
 
         disability benefits.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  On January 8, 1985, claimant suffered a severe chemical 
 
         burn to his right thigh which arose out of and in the course of 
 
         his employment with Oscar Mayer.
 
         
 
              On the day of the work injury, claimant was cleaning 
 
         equipment with a device called a "saniseptor." This device 
 
         applies a soap-like substance on the surface of machines which 
 
         must then be rinsed off.  The soap-like substance is caustic and 
 
         consequently, claimant was compelled to wear protective rubber 
 
         clothing and boots as well as a shield over his face when he 
 
         operated this device.  The injury occurred when a hole developed 
 
         in the right leg of the protective garment worn by claimant and 
 
         the skin on the right thigh became exposed to the caustic soap.  
 
         Within minutes claimant felt his right leg become warm and after 
 
         investigating he observed an eight inch by five inch "black ball" 
 
         hanging on his leg.  Claimant then contacted his foreman and 
 
         asked to take a shower.  After the shower the black ball appeared 
 
         "like a scab and was bleeding." After reporting to the plant 
 
         first aid department, claimant was taken to the hospital and 
 
         received medication called "Silverdean." The next day claimant 
 
         was sent to Ahmad Chamany, M.D., (specialty unknown).  Dr. 
 
         Chamany then diagnosed a chemical burn and removed the burned 
 
         area on claimant's skin.  After a period of healing, claimant 
 
         underwent two skin graft procedures to cover the burned area with 
 
         skin taken from his right leg.  Claimant was then released to 
 
         return to full duty on April 9, 1985 by Dr. Chamany.
 
         
 
              Observations by the undersigned of the injured area at the
 
         hearing revealed a well healed but rather unsightly scar 
 
         approximately 10 or 11 centimeters in diameter on claimant's 
 
         front thigh.  No noticeable scar was seen on claimant's left leg 
 
         in the area of the skin graft.
 
         
 
              2.  A finding could not be made that the chemical burn of 
 
         January 8, 1985 was a cause of permanent functional impairment.
 
         
 
              Claimant and his mother testified at the hearing that prior 
 
         to the chemical burn, he had no numbness or tingling in his legs, 
 
         hip, back, hands or feet and since that time he has had those 
 
         complaints.  Claimant and his mother testified that prior to 
 
         January 8, 1985 claimant had no low back pain, left leg limp or 
 
         right toe or foot drag but has experienced these symptoms since 
 
         the injury.
 
         
 
         
 
              Two medical opinions have been offered into the evidence.  
 
         Defendant relies on the views of the treating physician, Ahmad 
 
         Chamany, M.D. Dr. Chamany states that the chemical burn did not 
 
         extend into the muscle or lower tissues of the right thigh and 
 
         that the burn did not cause any significant functional problem or 
 
         any work limitation.  In June, 1986, claimant was examined by F. 
 
         Dale Wilson, M.D., (specialty unknown).  His examination 
 
         described all of the physical problems described above by 
 
         claimant and his mother.  Dr. Wilson initially states in his 
 
         report that the work injury of January 8, 1985 was a causative 
 

 
         
 
         
 
         
 
         SWANSON V. OSCAR MAYER FOODS CORPORATION
 
         Page   3
 
         
 
         
 
         factor in these symptoms which the doctor believes are permanent.  
 
         However, aside from loss of sensation in the area of the right 
 
         thigh skin graft, Dr. Wilson states that he has no explanation as 
 
         to why these complaints exist.  He apparently bases his causal 
 
         connection opinions only on the fact that claimant had no such 
 
         complaints before.  During the hearing claimant was asked why he 
 
         did not complain to Dr. Chamany about these various problems.  
 
         Claimant responded that they did not become noticeable until four 
 
         to five months after the injury.
 
         
 
              First, claimant has not established by a preponderance of 
 
         the evidence that his pain and loss of sensation complaints other 
 
         than in the right thigh is causally connected to the chemical 
 
         burn.  Considerable weight must be given to the treating 
 
         physician who indicates that the burn did not extend beyond the 
 
         surface skin.  Also, claimant's various complaints occurred 
 
         several weeks after the incident.  Furthermore, the only doctor 
 
         to state that claimant does have impairment caused by the work 
 
         injury cannot explain how a skin burn can cause low back pain, 
 
         foot drop and limp and loss of sensation in the hands.
 
              
 
              Finally, although causation of the loss of skin sensation in 
 
         the right leg is rather obvious, Dr. Chamany apparently did not 
 
         believe this to be significant enough to cause functional loss of 
 
         the use of the leg.  Dr. Wilson gives a one percent impairment 
 
         rating for such a loss of sensation but, likewise, cannot explain 
 
         how such a loss of sensation can result in a functional loss of 
 
         use.  Claimant himself at the hearing was unable to explain or 
 
         describe any functional loss of use of the leg caused by the 
 
         numbness in the right leg.
 
         
 
              Admittedly, claimant suffered a very painful and unsightly 
 
         burn and probably does have the various troublesome and painful 
 
         physical problems in his hands, hip, back and legs which were 
 
         discussed during the hearing but his claim that these problems 
 
         were caused by the chemical burn has simply not been established 
 
         by the greater weight of the medical opinions offered into the 
 
         evidence. we have two well qualified doctors in this case who 
 
         disagree and the testimony of claimant and his mother alone 
 
         simply was not enough to tilt the scale in favor of claimant.
 
         
 
         
 
         
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              In this case there was no controversy raised by the parties 
 
         concerning the applicable law to be followed in the determination 
 
         of the issues.  The foregoing findings of fact were made under 
 
         the following principles of law:
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 

 
         
 
         
 
         
 
         SWANSON V. OSCAR MAYER FOODS CORPORATION
 
         Page   4
 
         
 
         
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.
 
         
 
              In the case sub judice, no finding was made causally 
 
         connecting the work injury to permanent functional impairment to 
 
         a body member.  Therefore, claimant is not entitled to permanent 
 
         disability benefits.
 
         
 
              Although claimant did not prevail in this proceeding, he
 
         
 
         appeared sincere in his testimony presented at the hearing and 
 
         his claim is supported by at least one physician.  Therefore, the 
 
         claimant shall be awarded the costs of this action.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED as follows:
 
         
 
               1.  That claimant's petition is dismissed.
 
         
 
              2.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rules 343-4.33.
 
         
 
         
 
         
 
              Signed and filed this 13th day of May, 1987.
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         SWANSON V. OSCAR MAYER FOODS CORPORATION
 
         Page   5
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Albert J. Stafne, Jr.
 
         Attorney at Law
 
         2535 Tech Drive, Suite 200
 
         Bettendorf, Iowa 52722
 
         
 
         Mr. Richard M. McMahon
 
         Attorney at Law
 
         111 East Third Street
 
         Suite 600
 
         Davenport, Iowa 52801-1550
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40
 
                                                  Filed May 13, 1987
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         WILLIAM E. SWANSON, SR.,
 
         
 
            Claimant,
 
                                                  FILE NO. 783926
 
         VS.
 
                                              A R B I T R A T I 0 N
 
         OSCAR MAYER FOODS CORPORATION,
 
                                                  D E C I S I 0 N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         _________________________________________________________________
 
         
 
         1402.40
 
         
 
              Claimant failed to establish the causal connection between 
 
         the work injury and permanent disability benefits.  Permanent 
 
         disability benefits were therefore denied.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DONALD PEEK,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 784000
 
            SUPER VALU STORES, INC., :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 18, 1990 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 29, 1991
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DONALD PEEK,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 784000
 
            SUPER VALU STORES, INC., :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            18, 1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD PEEK,
 
         
 
                Claimant,
 
         VS.                                          File No. 784000
 
         
 
         SUPER VALU STORES, INC.,                    A R B I T R A T I O 
 
         N
 
         
 
                Employer,                                D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Donald Peek 
 
         against his employer, Super Valu Stores, Inc., and its insurance 
 
         carrier, Liberty Mutual Insurance Company.  The case was heard 
 
         and fully submitted at Des Moines, Iowa on May 11, 1989.  The 
 
         record in the proceeding consists of jointly offered exhibits A 
 
         and B and testimony from Donald Peek and William A. Hart.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks additional compensation for temporary partial 
 
         disability, healing period and permanent partial disability based 
 
         upon an injury that occurred on December 20, 1984.  It was 
 
         stipulated that claimant sustained an injury which arose out of 
 
         and in the course of employment on December 20, 1984 and that the 
 
         injury was a cause of temporary disability during a period of 
 
         recovery.  The extent of the entitlement was disputed, however.  
 
         Defendants denied claimant's claim of entitlement to compensation 
 
         for permanent partial disability.  Defendants assert that while 
 
         claimant clearly has disability, it was not proximately caused by 
 
         the employment injury that occurred on December 20, 1984.
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 2
 
         
 
         
 
                               SUMMARY 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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Donald Peek is a 53-year-old married man who has five adult 
 
         children.  Peek quit school and went to work after the ninth 
 
         grade.  He stated that he reads slowly and that his spelling is 
 
         not good.  Peek denied suffering any serious injuries when he was 
 
         a child.
 
         
 
              After leaving school claimant worked in a grocery store for 
 
         three years where he handled weights of from 50-100 pounds.  He 
 
         entered the National Guard at age 17 and was given an honorable 
 
         discharge after eight years of service. Peek worked in the 
 
         warehouse of Western Grocer where his work required bending, 
 
         stooping and lifting.  He denied suffering any injuries while so 
 
         employed.
 
         
 
              In 1960, Peek commenced employment with Super Valu.  He has 
 
         performed many different jobs over the years.  He has filled 
 
         orders, driven a forklift and worked in the produce and meat 
 
         departments.  Peek stated that the jobs have required a lot of 
 
         bending, twisting and lifting of weights in the range of 20-70 
 
         pounds.
 
         
 
              Peek testified at hearing that he had experienced back pain 
 
         and missed work due to back pain prior to December 20, 1984, but 
 
         that the back pain had always cleared up while he was off work.  
 
         Peek explained that the work at Super Valu is heavy and that 
 
         other employees also commonly miss work due to back pain.
 
         
 
              The employer's records demonstrate that Peek was granted a 
 
         30-day leave of absence for muscle.spasms in his back in 1972 
 
         (exhibit A, pages 23, 24 and 40).  There was a subsequent leave 
 
         of absence from September 27, 1974 until January 13, 1975 for his 
 
         back (exhibit A, page 23).  Claimant related experiencing back 
 
         pain following a pickup accident in 1977.  A medical treatment 
 
         note from 1977 makes reference to an accident of January 29, 1977 
 
         (exhibit B, page 6).  The records show claimant to have engaged 
 
         in a continuing course of medical treatment for low back pain 
 
         which radiated down his legs on occasion throughout most of 1977.  
 
         His complaints were apparently sufficiently severe at
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 3
 
         
 
         
 
         that time to have prompted the treating physicians to conduct a 
 
         myelogram (exhibit B, pages  5-11).  Records  from Marvin 
 
         Dubansky, M.D., of Orthopaedic Associates, dated December 16, 
 
         1977 note that claimant provided a history of a vehicle accident 
 
         on January 29 or 30, 1977 as the point of onset of his low back 
 
         problem.  X-rays taken at that time were interpreted as showing 
 
         minimal degenerative  changes.  Dr. Dubansky formed the 
 
         impression that claimant had a chronic low back ache from chronic 
 
         muscle ligamentous strain (exhibit B, page 51).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant had sought treatment at Mercy Hospital for back 
 
         pain in 1980.  He was seen by orthopaedic surgeon Sinesio Misol, 
 
         M.D., who formed the impression that claimant had degenerative 
 
         disc disease without neurologic deficit.  Dr. Misol stated, "He 
 
         is in the right age group and if he had an injury a few years 
 
         ago, that would also contribute to the aggravation of this 
 
         natural aging process of the disc. (Exhibit B, page 23)
 
         
 
              The employer's records indicate that claimant was granted 
 
         another leave of absence from March 9, 1981 until June 21, 1981 
 
         for back problems.  A memorandum which appears in the file 
 
         indicates that on March 24, 1981 claimant had attributed his back 
 
         problems to a truck accident  (exhibit A, pages 23 and 25).
 
         
 
              Claimant also was off work under a leave of absence for back 
 
         problems from August 26, 1981 until November 1, 1981 (exhibit A, 
 
         page 23).
 
         
 
              Yet another leave of absence for back and leg pain  was 
 
         granted for the period from April 8, 1982 until June 14, 1982 
 
         (exhibit A, pages 23 and 31). Claimant sought medical treatment 
 
         at Mercy Hospital where x-rays showed narrowing at the L5-Sl disc 
 
         space.  His bones were determined to be osteoporotic, but not 
 
         unusually so in view of his age.  Lateral and anterior 
 
         hypertrophic spurring was observed (exhibit B, page 27).  The 
 
         medical history states in part, "The patient complains of back 
 
         pain for a number of years which is aggravated by bending, 
 
         stooping, and lifting, and only partially relieved with rest."  
 
         (Exhibit B, page 28) Claimant was thoroughly tested during that 
 
         period of hospitalization, including a myelogram, but no new 
 
         abnormalities in his lumbar spine were identified  (exhibit A, 
 
         page 53).
 
         
 
              Following his release from Mercy Hospital, claimant entered 
 
         the Mercy Pain Center under the direction of James L. Blessman, 
 
         M.D., for treatment of what was described as "chronic pain 
 
         syndrome."  The report issued by Dr. Blessman
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 4
 
         
 
         
 
         indicates that claimant gave a history of having back pain off 
 
         and on for the preceding 25 years.  The report indicates that 
 
         claimant attributed the problem to a fall and that the pain had 
 
         become considerably worse over the past several months (exhibit 
 
         B, page 45).  The report goes on to indicate that claimant 
 
         improved somewhat during the program, although he did not 
 
         complete the entire program.  Dr. Blessman expressed concern 
 
         about claimant's long-term prognosis (exhibit B, page 46).
 
         
 
              Claimant commenced seeing Robert A. Hayne, M.D., a Des 
 
         Moines neurosurgeon, with complaints of severe low back pain in 
 
         February of 1983.  Under his direction, a CT scan was performed 
 
         which showed some degeneration, mild scoliosis and arthritic 
 
         changes (exhibit B, page 114).  Dr. Hayne formed the opinion that 
 
         claimant had a chronic myofascial strain of the low back legion 
 
         and recommended that claimant wear a low back corset for support 
 
         (exhibit B, pages 166 and 167).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was again granted a leave of absence from work for 
 
         a back strain running from January 19, 1984 through January 25, 
 
         1984 and then again from January 29, 1984 through March 14, 1984 
 
         (exhibit A, page 23).  On March 28, 1984, Paul From, M.D., who 
 
         claimant considers to be his family physician, recommended that 
 
         claimant avoid performing the work of filling orders because 
 
         claimant was unable to tolerate the activities of bending, 
 
         stooping and twisting (exhibit B, page 50).  Dr. From had treated 
 
         claimant for a traumatic lumbosacral strain in 1977 and for back 
 
         and neck pain in March of 1988 (exhibit B, pages 48 and 49).
 
         
 
              Claimant was seen at Mercy Hospital on November 9, 1984 when 
 
         he made complaints of back pain and burning which was worse at 
 
         the end of the day (exhibit B, page 39).  Claimant also obtained 
 
         medical treatment for back complaints in 1983 (exhibit B, page 
 
         36).
 
         
 
              On December 20, 1984, Peek was working as a truck unloader.  
 
         Doing so required that he open the door of the truck which he was 
 
         to unload.  Claimant injured his back while trying to open the 
 
         garage-type overhead door on the truck.  Peek stated that he 
 
         experienced sharp pain which steadily worsened as his work shift 
 
         progressed and that he reported it to his foreman.  Claimant was 
 
         seen at Mercy outpatient by Kelly S. Bast, M.D., a company 
 
         physician, on December 21, 1984.  Dr. Bast diagnosed claimant as 
 
         having a muscular low back strain.  He recommended that claimant 
 
         be off work for a couple of weeks, take pain pills and rest 
 
         (exhibit  B, page 59).
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 5
 
         
 
         
 
              Claimant then remained off work until March 14, 1984, except 
 
         for one day when he attempted to resume work (exhibit A, page 23; 
 
         exhibit B, page 60).
 
         
 
              While off, claimant was seen by Dr. Dubansky who concluded 
 
         that claimant's complaints were strictly subjective and that he 
 
         had nothing to offer claimant in the way of treatment, other than 
 
         more physical therapy which had been ineffective (exhibit B, 
 
         pages 54-56).
 
         
 
              Claimant worked during much of the spring, summer and fall 
 
         of 1985, but while doing so he entered into a course of 
 
         evaluation and treatment under the direction of Des Moines 
 
         orthopaedic surgeon William R. Boulden, M.D.  Dr. Boulden 
 
         diagnosed claimant as having chronic low back pain secondary to 
 
         degenerative disc disease and spinal instability.  He felt that 
 
         claimant's symptoms were not inconsistent with the degenerative 
 
         changes and instability which he observed in claimant's x-rays.  
 
         Dr. Boulden attempted treatment with a back exercise program and 
 
         a TENS unit. A new CT scan  was performed on May 7, 1985 which 
 
         showed mild spinal stenosis, but Dr. Boulden felt that claimant's 
 
         symptoms were from the degenerative disc disease, rather than the 
 
         stenosis (exhibit B, pages 65-67 and 77). Dr. Boulden had 
 
         considered a  fusion surgery to relieve any symptoms resulting 
 
         from spinal instability, but concluded that it would not relieve 
 
         claimant's symptoms.  In the end, he recommended against claimant 
 
         having surgery.  His final diagnosis was chronic myofascial pain 
 
         (exhibit B, pages 70-72).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant had  worked steadily from March 24, 1986 until 
 
         October 15, 1985 when he reported that he had reinjured his back 
 
         while lifting doors at work.  Dr. Bast found claimant to exhibit 
 
         thoracolumbar scoliosis secondary to muscle spasm. He diagnosed 
 
         claimant as having an acute low  back strain with persistent 
 
         pain, took claimant off work and recommended treatment in the 
 
         nature of rest and medications (exhibit B, page 60).
 
         
 
              On October 28, 1985, claimant was evaluated by Ames 
 
         orthopaedic surgeon John A. Grant, M.D.  In his report, Dr. Grant 
 
         stated:
 
         
 
              I feel this gentleman has chronic back pain which
 
              is a combination of factors.  It appears that he
 
              may have at one time or another had compression
 
              fractures at T7 and T8 which I think currently are
 
              healed.  Nevertheless, he has evidence to suggest
 
              some osteoporosis for a man only 50 years of age,
 
              as well as some mild degenerative change in the
 
              facettes at L4-5, and increased kyphosis and
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 6
 
         
 
         
 
              minimal scoliosis. . . . Currently I think he
 
              should remain off work a bit longer and continue
 
              the use of a transcutaneous nerve stimulator, as
 
              well as a brace. I think the ideal solution would
 
              be to consider a job change or at least allow
 
              employment where he does not have to do any form
 
              of lifting other than on rare occasions.  Finally,
 
              I think he must live "around his back distress".
 
              He does appear to exaggerate somewhat his
 
              responses to the exam, but he does apparently have
 
              a good work record with 25 years employment with
 
              Super-Valu.  (Emphasis in original.]
 
         
 
              (Exhibit B, pages 79-80)
 
         
 
         
 
              On November 8, 1985, claimant was evaluated by Mark D. 
 
         Ravreby, M.D., who found claimant to have a normal physical exam, 
 
         but who also raised a question of psychological factors regarding 
 
         claimant's complaints (exhibit B, pages 81 and 82).
 
         
 
              It is unclear whether claimant returned to work during the 
 
         remainder of 1985 or early 1986.  Exhibit A, pages 114 and 115 
 
         seem to indicate that he resumed work on December 5, 1985 and 
 
         continued working essentially until taking vacation on March 10, 
 
         1986 as shown at exhibit A, page 115.  Exhibit B, page 62 shows 
 
         that Dr. Bast released claimant to return to work on March 24, 
 
         1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was evaluated at the Institute for Low Back Care on 
 
         February 13, 1986 and a further work-up was recommended (exhibit 
 
         B, page 83). Dr. Bast authorized claimant to return to work on 
 
         March 24, 1986 (exhibit A, page 62).  He was again apparently off 
 
         work from March 30 through April 6, 1986 (exhibit A, page 63).  
 
         Dr. Bast released him to return to work at light duty on April 7, 
 
         1986 and again on April 21, 1986 (exhibit B, pages 63 and 64), 
 
         however exhibit A, page 115 seems to indicate that claimant did 
 
         not work after March 25, 1986.
 
         
 
              Claimant returned to the Institute for Low Back Care where 
 
         he underwent a posterior lumbar intertransverse fusion on May 23, 
 
         1986 (exhibit B, pages 86, 103 and 104).  Claimant recuperated 
 
         following the surgery until January 6, 1987 when the treating 
 
         physician authorized him to return to work.  The only restriction 
 
         that was given was that claimant avoid repetitive bending.  No 
 
         weight restriction was imposed. The physician's notes indicate 
 
         that claimant related that he was 70 percent improved by the 
 
         surgery (exhibit B, page 90).  Alexander Lifson, M.D., claimant's 
 
         surgeon at the Institute, rated claimant as having a 25
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 7
 
         
 
         
 
         percent permanent partial disability to the body (exhibit B, page 
 
         93).
 
         
 
              Claimant testified that he returned to work on January 12, 
 
         1987 and bid into the job of freight hauling where he used a 
 
         pallet jack to move freight.  Claimant stated that the job 
 
         consisted primarily of pushing buttons, but that it did require 
 
         standing.  Claimant related that the only lifting he performs is 
 
         picking up boxes which fall from the machine, an event which 
 
         occurs approximately once per month.  Claimant considers it to be 
 
         the least physically demanding job in the employer's facility.  
 
         Claimant testified that he got along well until July of 1987 when 
 
         his back started hurting again, the same as it had before the 
 
         surgery had been performed.  Claimant was unable to connect the 
 
         change to anything that had happened to him at work or at home. 
 
         Claimant returned to Dr. Lifson in October of 1987 and Dr. Lifson 
 
         indicated that a more detailed evaluation would be necessary in 
 
         order to attempt to determine the reason for the change in 
 
         claimant's pain (exhibit B, pages 91 and 92). That workup has not 
 
         been performed.
 
         
 
              When claimant experienced the setback, he consulted Raymond 
 
         Webster, M.D., who concluded that claimant had chronic low back 
 
         pain with a mild acute flare.  He was treated conservatively and 
 
         taken off work (exhibit B, pages 115 and 116).  A CT scan was 
 
         performed on July 14, 1987 which was interpreted as showing 
 
         postoperative changes, degenerative changes and arthritic 
 
         changes.  It was indicated that the L5-Sl disc was degenerated 
 
         (exhibit B, page 123). claimant was then released to return to 
 
         work  on a restricted basis commencing July 21, 1987 (exhibit B, 
 
         page 125).  Following that release, claimant gradually  increased 
 
         the number of hours per day which he worked to six hours, a work 
 
         level which he maintained until approximately Christmas of 1987.  
 
         During that period of time, claimant had exacerbations of his 
 
         symptoms and occasionally missed  work (exhibit B, pages 
 
         126-138).  On December 23, 1987, an MRI scan of claimant's lumbar 
 
         spine again showed postoperative and degenerative changes.  It 
 
         also showed diffuse bulging of claimant's L3-4 disc, but it did 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         not appear to be impinging (exhibit B, page 139).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant resumed regular full-time work commencing December 
 
         28, 1987 and continued working full-time until January 7, 1988 
 
         (exhibit B, page 142).  Claimant resumed work following January 
 
         10, 1988 and worked full-time until January 19, 1988.  On January 
 
         15, 1988 boxes of tissue  fell on his head at work and he heard 
 
         his neck "pop."  He stated that since the incident, he had 
 
         experienced pain across his neck and shoulders (exhibit B, page 
 
         143). Commencing on
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 8
 
         
 
         
 
         January 19, 1988, claimant resumed working six hours per day 
 
         (exhibit B, page 144).
 
         
 
              A CT scan and myelogram performed January 27, 1988 showed 
 
         apophyseal spondylosis at the L4-5 level.  Claimant commenced 
 
         seeing Robert A. Hayne, M.D., a Des Moines orthopaedic surgeon.  
 
         On February 22, 1988, Dr. Hayne took claimant off work due to his 
 
         neck complaints (exhibit B, page 162).  On April 7, 1988, Dr. 
 
         Hayne reported that claimant had reached maximum healing 
 
         regarding his low back and rated claimant as having a 9-10 
 
         percent permanent impairment (exhibit B, page 168).  On November 
 
         11, 1988, Dr. Hayne released claimant to return to work full-time 
 
         with a 30-pound lifting limit (exhibit B, page 169).  On July 20, 
 
         1988, Dr. Hayne reported that he was unable to find any 
 
         significant organic involvement.  He felt that there was 
 
         considerable functional overlay regarding claimant's symptoms and 
 
         he recommended that no further surgery be performed (exhibit B, 
 
         pages 170 and 171).
 
         
 
              On October 10, 1988, claimant was given a functional 
 
         capacity evaluation by Thomas W. Bower, L.P.T.  The results 
 
         produced were inconsistent (exhibit B, page 172).
 
         
 
              Claimant was seen at the Occupational Medicine Clinic at 
 
         Iowa Methodist Medical Center on March 29, 1989.  David T. Berg, 
 
         D.O., reported that he did not believe claimant was capable of 
 
         performing a normal 10-hour shift at Super Valu, or even an 
 
         8-hour shift.  Dr. Berg also concluded that surgery was not 
 
         advisable and that in claimant's present condition he doubted if 
 
         claimant could continue his work at Super Valu (exhibit B, pages 
 
         108 and 109).
 
         
 
              At the time of hearing, claimant was working six hours per 
 
         day.  He stated that he has scheduled breaks and hardly ever 
 
         lifts anything, other than on the few occasions when something 
 
         falls off a pallet.  Claimant stated that he plans to continue 
 
         working until age 60.  Claimant felt that he was currently able 
 
         to retire, but that the amount of his pension would be adversely 
 
         affected by retirement at an early age.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that at the present time he is afflicted 
 
         with pain from the bottom of his shoulder blades down to his 
 
         toes.  He stated that the intensity of the  pain varies and is 
 
         worsened with activity.  He estimated that  he could sit in a 
 
         cushioned chair for approximately one hour, but that on a hard 
 
         chair, only for 15 or 20 minutes.  Claimant related that he can 
 
         stand without moving for approximately one-half hour.
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 9
 
         
 
         
 
              Claimant stated that his off-work activities have been 
 
         curtailed in that he no longer performs carpentry, yard work or 
 
         work on cars.  He stated that his vacation travel has also been 
 
         curtailed.  Claimant stated that he is currently consulting Dr. 
 
         Hayne for his back condition.
 
         
 
              William A. Hart, the loss prevention manager of Super Valu, 
 
         stated that claimant has enough seniority to bid into almost any 
 
         job at the plant.  Hart considered the job of billing clerk as 
 
         being less physically demanding than the job which claimant 
 
         currently holds.  Hart indicated that the light-duty program in 
 
         which claimant is currently carried terminates when the physician 
 
         indicates that maximum healing has occurred.  Hart stated that 
 
         the normal work schedule for employees is 40 hours per week.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an
 
              occupational disease under the Workmen's
 
              Compensation Act, yet an injury to the health may
 
              be a personal injury.  [Citations omitted.]
 
              Likewise a personal injury includes a disease
 
              resulting from an injury .... The result of changes
 
              in the human body incident to the general
 
              processes of nature do not amount to a personal
 
              injury.  This must follow, even though such
 
              natural change may come about because the life has
 
              been devoted to labor and hard work.  Such result
 
              of those natural changes does not constitute a
 
              personal injury even though the same brings about
 
              impairment of health or the total or partial
 
              incapacity of the functions of the human body.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              A personal injury, contemplated by the Workmen's
 
              Compensation Law, obviously means an injury to,the
 
              body, the impairment of health, or a disease, not
 
              excluded by the act, which comes about, not through the
 
              natural building up and tearing down of the human body,
 
              but because of a traumatic or other hurt or damage to
 
              the health or body of an employee.  [Citations
 
              omitted.]  The injury to the human body here
 
              contemplated must be something, whether an accident or
 
              not, that acts extraneously to the natural processes of
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 10
 
         
 
         
 
              nature, and thereby impairs the health, overcomes,
 
              injures, interrupts, or destroys some function of the
 
              body, or otherwise damages or injures a part or all of
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 20, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs,  236  Iowa 2961 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).
 
         
 
              Aggravation of a preexisting condition is one form of 
 
         compensable injury.  While a claimant is not entitled to 
 
         compensation for the results of a preexisting injury or disease, 
 
         the mere existence at the time of a subsequent injury is not a 
 
         defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
         N.W.2d 756, 760-61 (1956).  If the claimant had a preexisting 
 
         condition or disability that is aggravated, accelerated, worsened 
 
         or lighted up so that it results in disability, claimant is 
 
         entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 
 
         130, 115 N.W.2d 812, 815 (1962).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is overwhelmingly established that Donald Peek had a 
 
         severe problem with his back long prior to December 20, 1984.  He 
 
         frequently missed weeks of work due to back pain.  His 
 
         credibility is impaired by his testimony that his back pain would 
 
         clear up while he was off work and also by his testimony that he 
 
         did not have to change jobs at Super Valu on account of his back 
 
         pain (transcript, pages 19 and 20).  The records of medical 
 
         treatment show a continuing recurring
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 11
 
         
 
         
 
         course of back complaints.  On March 28, 1984, Dr. From wrote a 
 
         report advising that claimant should be removed from the job of 
 
         filling orders (exhibit B, page  50).  Claimant's treatment at 
 
         the Mercy Pain center in 1982 did not entirely relieve his back 
 
         complaints.  It is determined that claimant's back was afflicted 
 
         with degenerative disc disease long prior to December 20, 1984 
 
         and that the condition had been quite symptomatic long prior to 
 
         December 20, 1984.  In view of that condition, claimant was 
 
         likely quite susceptible to injuries which would aggravate the 
 
         condition.  The events of December 20, 1984 are determined to be 
 
         one of those situations where the condition was aggravated.
 
         
 
              The problem with degenerative disc disease is that the 
 
         condition is one which generally is progressive and generally 
 
         worsens, regardless of the afflicted individual's work or other 
 
         activities.  Once the process is underway, the afflicted 
 
         individual rarely makes any long-term improvement. There is 
 
         recovery from acute exacerbations of the condition, but the 
 
         individual seldom becomes completely symptom-free.
 
         
 
              The event that occurred on December 20, 1984 was not an 
 
         incident of what would normally be considered major trauma.  The 
 
         back strain or sprain which was initially diagnosed by Dr. Bast 
 
         is the type of injury which would normally be expected to result.  
 
         Claimant was off work, recuperated and resumed employment, 
 
         performing the same duties as he had been performing at the time 
 
         of the injury.  Claimant continued to perform those same duties 
 
         until he suffered a reinjury in October of 1985.  He was then 
 
         again taken off work and placed into medical treatment.  He 
 
         eventually underwent surgery.  Following recuperation from the 
 
         surgery, he again returned to work, but bid into the job of 
 
         freight hauling where he used a pallet jack.  Despite the 
 
         apparently light nature of the new job, he experienced a setback 
 
         in his condition in July of 1987, approximately six months 
 
         following his return to work.  Since that setback, claimant has 
 
         not made a sustained return to full-time employment, but rather 
 
         has worked for what appears to primarily consist of four six-hour 
 
         days per week through the employer's light-duty program.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The record in this case is nearly devoid of any expert 
 
         opinions which attribute claimant's condition to any particular 
 
         event or series of events.  His symptoms have frequently been 
 
         attributed to his degenerative condition. The only indication in 
 
         the record of this case which touches on the cause for the 
 
         degenerative condition is the opinion expressed by Dr. Misol in 
 
         1980 where he attributed the degenerative condition to claimant's 
 
         age and his earlier injury (exhibit B, page 23).  There are 
 
         several indications
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 12
 
         
 
         
 
         in the record from Dr. Hayne, Dr. Grant, Dr. Dubansky and 
 
         therapist Bower which give further reason to question the 
 
         credibility of claimant's testimony regarding the onset and 
 
         severity of his complaints.  While claimant undoubtedly does 
 
         suffer from a quite substantial level of back pain, the 
 
         undersigned is not convinced that his testimony at hearing 
 
         accurately distinguished the times at which the pain was 
 
         relatively greater from the times at which it was relatively 
 
         less.  Claimant's strongest evidence regarding the causal 
 
         relationship between the December 20, 1984 incident and his 1986 
 
         surgery is his testimony of continuing pain which had its onset 
 
         with December 20, 1984.  In view of the unreliability of 
 
         claimant's testimony and the lack of any corroborating expert 
 
         medical opinion or other clear evidence of a causal relationship, 
 
         it is determined that Donald Peek has failed to prove, by a 
 
         preponderance of the evidence, that the injury of December 20, 
 
         1984 was a substantial factor in producing the need for the 
 
         surgery which was performed in 1986 or of any of the disability 
 
         which has afflicted claimant since that surgery was performed.
 
         
 
              To the contrary, it appears as though claimant did sustain 
 
         the injury on December 20, 1984, as stipulated  by the employer, 
 
         that he was off work for a period of approximately four months 
 
         for recuperation and that he then returned to work performing at 
 
         the same level as he had performed prior to the time of the 
 
         injury.  The evidence further shows that he continued to perform 
 
         at that same level until a subsequent reinjury or reaggravation 
 
         that occurred in October of 1985.  The fact that claimant had 
 
         sought treatment from Dr. Boulden during the summer of 1985 is 
 
         evidence which somewhat corroborates claimant's testimony of an 
 
         increase in his level of discomfort, but the findings made by Dr. 
 
         Boulden do not attribute any part of claimant's problem to the 
 
         December 20, 1984 incident.  Dr. Boulden's findings do not show 
 
         any part of claimant's condition to be the result of an injury.  
 
         Instead, he attributes it to degenerative disc disease (exhibit 
 
         B, page 67).
 
         
 
              It is therefore determined that as a result of the injury of 
 
         December 20, 1984, Donald Peek is entitled to receive temporary 
 
         total disability compensation for the period commencing December 
 
         21, 1984 and running until March 25, 1985 when he returned to 
 
         work (exhibit A, page 114; exhibit B, page 57).  That span of 
 
         time is 13 3/7 weeks.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There is no showing in the record of this case that the 
 
         event of injury that occurred in October of 1985 was in any 
 
         manner proximately caused by the December 20, 1984 injury.  The 
 
         1985 incident, like the one of 1984, was apparently minor at the 
 
         onset.  The record does not show that the
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 13
 
         
 
         
 
         surgery was necessitated by either the 1984 or 1985 injuries.  
 
         Following the surgery, it appears as though claimant was doing 
 
         well until the time of his unexplained setback in July of 1987.  
 
         Claimant had again resumed full-time work until being struck on 
 
         the head in yet another injurious incident in January of 1988.  
 
         There is simply no way that the undersigned can causally connect 
 
         any portion of the permanent disability which currently afflicts 
 
         Donald Peek to that December 20, 1984 incident or even to the 
 
         October, 1985 incident.  The greater weight of the evidence is 
 
         that claimant's current disability, including the disability 
 
         produced by the surgery itself, is a result of degenerative disc 
 
         disease rather than of any injury that he sustained in the course 
 
         of his employment in 1984.
 
         
 
              This decision does not adjudicate whatever entitlement 
 
         claimant may have based upon the alleged October, 1985 injury or 
 
         the alleged January, 1988 injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Donald Peek has failed to introduce evidence showing it 
 
         to be probable that the injury he sustained on December 20, 1984 
 
         was a substantial factor in producing any of the permanent 
 
         disability which currently afflicts him.
 
         
 
              2. The greater weight of the evidence is that the injury of 
 
         December 20, 1984 was one of a series of incidents which have 
 
         temporarily aggravated claimant's long-standing, preexisting 
 
         degenerative disc disease.
 
         
 
              3. Claimant failed to establish the accuracy of his 
 
         testimony regarding his symptoms, in particular their onset, the 
 
         times at which they worsened, and the times at which they were 
 
         relieved.
 
         
 
              4. As a result of the injury of December 20, 1984, Donald 
 
         Peek was medically incapable of performing work in employment 
 
         substantially similar to that he performed at the time of injury 
 
         from December 21, 1984 until March 25, 1985 when claimant 
 
         returned to work.
 
         
 
              5. Defendants have paid weekly compensation far in excess of 
 
         the 13 3/7 weeks to which claimant was entitled as a result of 
 
         the December 20, 1984 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
         
 
         
 
         PEEK v. SUPER VALU STORES, INC.
 
         Page 14
 
         
 
         
 
              2. Claimant has failed to prove that the injury of December 
 
         20, 1984 was a proximate cause of any disability which has 
 
         afflicted him since March 25, 1985.
 
         
 
              3. The injury of December 20, 1984 was a temporary 
 
         aggravation of claimant's preexisting degenerative disc disease, 
 
         on account of which he was entitled to recover 13 3/7 weeks of 
 
         compensation for temporary total disability under the provisions 
 
         of Iowa Code section 85.33(l).
 
         
 
              4. Defendants have previously paid all weekly compensation 
 
         to which claimant is entitled as a result of the December 20, 
 
         1984 injury.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 18th day of January, 1990.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa  50309
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Richard G. Book
 
         Attorneys at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51108.50, 51402.30,
 
                                         51402.40, 52206
 
                                         Filed January 18, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD PEEK,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 784000
 
         
 
         SUPER VALU STORES, INC.,                   A R B I T R A T I O N
 
         
 
              Employer,                                  D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51108.50, 51402.30, 51402.40, 52206
 
         
 
              Claimant, who had severe preexisting degenerative disc 
 
         disease was awarded 13 3/7 weeks of temporary total disability 
 
         for a temporary aggravation of the condition.  Subsequent 
 
         absences from work, surgery, and increased disability were not 
 
         proven by a preponderance of the evidence to have been 
 
         proximately caused by the injury upon which the claim was based, 
 
         which injury was admitted by the employer.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         KENNETH BELLAMY,          :
 
                   		   :
 
              Claimant, 	   :
 
                   		   :
 
		         vs.       :
 
                		   :    File Nos. 784013/797315
 
         ARROW-ACME CORPORATION,   :
 
                   		   :          A P P E A L
 
              Employer,   	   :
 
		                   :        D E C I S I O N
 
		         and       :
 
                		   :
 
         NATIONAL UNION FIRE INSURANCE:
 
         COMPANY,  		   :
 
                   		   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         January 24, 1991 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309-1398
 
         
 
         Mr. Jerry C. Estes
 
         Attorney at Law
 
         Suite 400 Boston Centre
 
         Fort Dodge, Iowa 50501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 31, 1991
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            KENNETH BELLAMY, 	      :
 
                      		      :
 
                 Claimant,	      :
 
		                      :
 
    		            vs.       :
 
                    	 	      :    File Nos. 784013/797315
 
            ARROW-ACME CORPORATION,   :
 
		                      :          A P P E A L
 
                 Employer,	      :
 
		                      :        D E C I S I O N
 
           		 and          :
 
                      		      :
 
            NATIONAL UNION FIRE INSURANCE:
 
            COMPANY,  		      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            24, 1991.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT RYAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 784316
 
         THE SCHEBLER COMPANY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CHUBB GROUP OF INSURANCE 
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the 
 
         claimant, Robert Ryan, against The Schebler Company, employer, 
 
         and Chubb Group of Insurance Companies, insurance carrier, to 
 
         recover benefits as a result of an alleged injury sustained on 
 
         December 17, 1984.  This matter came on for hearing before the 
 
         deputy industrial commissioner in Davenport, Iowa, on January 10, 
 
         1990.  The record consists of the testimony of the claimant; 
 
         joint exhibits 1 through 12; and claimant's exhibits 1 and 2.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1. Whether claimant's alleged injury is to a scheduled 
 
         member or to the body as a whole; and
 
         
 
              2. The extent of claimant's permanent disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a 1962 high school graduate and 
 
         took two years of post-high school courses at two different 
 
         junior colleges.  Claimant indicated his grades were poor to 
 
         average.  Claimant also said he went to a three day estimator 
 
         school in 1967.
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant related his job history as working in a grocery 
 
         store during high school and until September of 1967, at which 
 
         time he became an apprentice sheet metal worker.  Claimant 
 
         described his work history from September 1967 to his employment 
 
         with defendant employer in May 1984.  Claimant testified he 
 
         basically worked for various employers in the commercial sheet 
 
         metal business during this 1967 to 1984 period.
 
         
 
              Claimant said he worked for defendant employer beginning in 
 
         May 1984 involving the commercial sheet metal business.  He 
 
         indicated this type of business involved heavy work, lifting up 
 
         to 300 to 400 pounds or more, and climbing.  Claimant stated he 
 
         was always paid the highest commercial union scale.  Claimant 
 
         emphasized a commercial scale is $1.00 more per hour than the 
 
         residential scale.
 
         
 
              Claimant testified he was installing skylights in a project 
 
         of defendant employer at the Duckworth Mall on December 17, 1984.  
 
         He said he reached to pick up another piece of steel and caught 
 
         his legs in some debris and fell between some crating, injuring 
 
         his shoulders and arms.  Claimant emphasized he mainly injured 
 
         his left shoulder and elbow-arm and hand.  Claimant said he is 
 
         making no claim for his right shoulder, right arm or hand.  
 
         Claimant stated he had pain and swelling in both shoulders.  He 
 
         said he received a shot of Cortisone in the left elbow and six 
 
         hours later he could not move his left arm, elbow or shoulder.  
 
         Claimant emphasized he had to use his right hand to move his left 
 
         upper extremities.  Claimant testified he had therapy to his left 
 
         elbow and shoulder and a cast was placed on the left arm for six 
 
         weeks.  Claimant indicated he had two surgeries performed on his 
 
         left upper extremity.  Claimant described his problems and told 
 
         of being sent to different hospitals.  These matters will be 
 
         better reflected in the medical.
 
         
 
              Claimant said he was released to return to work and 
 
         returned to defendant employer on November 4, 1986 with a 20 
 
         pound weight limit and no climbing.
 
         
 
              Claimant described the numerous problems in trying to have 
 
         defendant employer abide by the restrictions.  On one particular 
 
         occasion, claimant was pushed into heavy work and tried to do it 
 
         and cut his hand.  Claimant said he related those problems to the 
 
         rehabilitation nurse.  Claimant said he was fired by defendant 
 
         employer in January 1987.  Claimant related that one hour before 
 
         his firing the shop superintendent told him that if the company 
 
         didn't abide by the restrictions, the superintendent would get 
 
         help.  Claimant explained he tried to get workers' compensation 
 
         and also asked defendant insurance company to help him find work.  
 
         Claimant said defendant insurance company would do nothing so he 
 
         contacted the unemployment office and the Iowa Industrial 
 
         Commissioner's office.  Claimant said he went to the street and
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         looked for a job and nobody would hire him.  He said he told them 
 
         of his restrictions.  Claimant said he obtained a job under a 
 
         federal JTPA program.  Claimant stated JTPA would retrain him if 
 
         he found a job.  Claimant has now been employed thirty-six hours 
 
         per week as a job estimator since August 11, 1987 at another 
 
         employer.  Claimant said he receives no overtime.
 
         
 
              Claimant emphasized that he is losing $120 a week or 
 
         approximately $6,235.84 a year, excluding overtime, comparing his 
 
         present job to the commercial sheet metal work he was able to 
 
         perform prior to his December 17, 1984 injury.  Claimant set out 
 
         the different union scales for residential versus commercial 
 
         work.  Claimant said he is presently paid the residential rate, 
 
         but emphasized there are other fringe benefits that he isn't 
 
         getting now plus he can't make any overtime pay.  Claimant said 
 
         he never had problems with his left elbow or shoulder prior to 
 
         working for defendant employer.  Claimant stated he now has a 
 
         frozen shoulder and loss of the left elbow extension.  He 
 
         revealed his arm goes to sleep and he has strength problems and 
 
         is afraid to climb.  Claimant demonstrated the extent of his 
 
         ability to reach and extend his left arm.  Claimant said he can't 
 
         reach or hold objects overhead nor can he do overhead work.  
 
         Claimant stated he is left handed.
 
         
 
              On cross-examination, claimant was asked why certain 
 
         medical doctors or personnel did not mention his shoulder 
 
         problems.  Claimant said his only explanation is that the pain 
 
         was worse in the elbow and the shoulder was overlooked.
 
         
 
              Ronald E. Palmer, M.D., an orthopedic surgeon, testified by 
 
         way of deposition taken June 1, 1989 that he first saw claimant 
 
         on October 29, 1985.  Dr. Palmer related the history claimant 
 
         gave him, which basically involved the left elbow.  The doctor 
 
         related he found claimant's symptoms were primarily about the 
 
         left elbow and claimant had lack of extension.  On March 19, 
 
         1986, Dr. Palmer performed an operation on claimant.  He 
 
         described the operation as follows:
 
         
 
                 At the time of surgery I released the muscles that extend 
 
              the forearm and hand which are the common extensors which 
 
              are the muscles that are involved in lateral epicondylitis 
 
              or tennis elbow or irritation of those muscles.  The 
 
              surgical treatment of that is releasing those muscles.
 
              
 
                 I also did a capsulotomy which means cutting a window 
 
              into the capsule and taking this folded tissue that was 
 
              being impinged or pressed inside the joint out
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY
 
         Page 4
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              and that was essentially the surgery that I did on March 
 
              19th, 1986.
 
         
 
         
 
         (Palmer Deposition, Joint Exhibit 12, pp. 7-8)
 
         
 
              Dr. Palmer indicated that the surgery he performed was the 
 
         second surgery to claimant's upper extremity since his December 
 
         17, 1984 injury.  Another doctor performed the first surgery.  
 
         The doctor referred to his April 8, 1988 letter, which will be 
 
         referred to later.  The doctor's final diagnosis was: "Chronic 
 
         lateral epicondylitis with impingement syndrome." (Palmer Dep, 
 
         it. Ex. 12, pp. 8-9)  This doctor described this as:
 
         
 
              Irritation of the muscles on the outside of the elbow which 
 
              extend the elbow at their point of origin which is called 
 
              the lateral epicondyle which is what the lateral 
 
              epicondylitis is.  It's also known as tennis elbow and the 
 
              infolding of the tissue into the joint which is the 
 
              impingement syndrome of the elbow which I think is secondary 
 
              to lateral epicondylitis.
 
              
 
         (Palmer Dep., Jt. Ex. 12, p. 9)
 
         
 
              The doctor opined that claimant's left elbow problems were 
 
         casually connected to his December 17, 1984 injury and resulted 
 
         in a 10 percent physical impairment and loss of physical function 
 
         in the whole arm due to the left elbow.  The doctor diagnosed 
 
         claimant as having adhesive capsulitis of his left shoulder which 
 
         is a condition where adhesions form between the bone and joint in 
 
         the shoulder restricting motion in the shoulder.  Dr. Palmer said 
 
         adhesive capsulitis is sometimes known as a frozen shoulder.  The 
 
         doctor was asked his reason why he felt there is a casual 
 
         connection between claimant's December 17, 1984 fall and the 
 
         adhesive capsulitis.  He answered:
 
         
 
              When one changes the way they use an extremity and changes 
 
              the mechanics by which they are using that extremity, that 
 
              can lead to problems in other areas other than the injured 
 
              area with time.  It is my opinion because of the changes in 
 
              the way Mr. Ryan used his extremity over a period of time he 
 
              eventually developed also difficulty in his left shoulder 
 
              which he probably would not have developed had he not 
 
              injured his left elbow.
 
         
 
         (Palmer Dep., Jt. Ex. 12, p. 12)
 
         
 
              Dr. Palmer opined claimant "has a 5 percent physical 
 
         impairment, loss of physical function in the whole arm due to the
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY 
 
         Page 5
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         loss of motion in his shoulder." (Palmer Dep., Jt. Ex. 12, p.13) 
 
         Dr. Palmer was further asked and answered:
 
         
 
              Q. Okay. What I'm trying to find out is adhesive capsulitis 
 
              to the shoulder, is that something that relates to the 
 
              shoulder as opposed to the arm?
 
              
 
              A. It is a specific diagnosis of a impairment of the 
 
              shoulder or a problem with the shoulder.  However, it 
 
              affects the function of the whole arm.
 
         
 
         (Palmer Dep., Jt. Ex. 12, p. 15)
 
         
 
              The doctor testified that using the AMA Guides, "a 5 
 
         percent impairment of the shoulder relates to a 3 percent 
 
         impairment of the whole body." (Palmer Dep., Jt. Ex. 12, p. 17)
 
         
 
              Dr. Palmer opined that the 20 pound lifting limitation with 
 
         his upper left extremity and no climbing is the result of 
 
         claimant's December 17, 1984 injury.  He also concluded that 
 
         these restrictions are required for both his shoulder and elbow 
 
         injury.  Dr. Palmer was asked and answered:
 
         
 
              Q. The AMA guideline that you used to determine the percent 
 
              of disability, in your original report you reported that 
 
              percentage as a percentage of an arm.  Is that your norm or 
 
              standard when rating the type of injury that you've seen in 
 
              Mr. Ryan?
 
              
 
              A. It is mine, yes.
 
              
 
              Q. What you have done today to convert that to body as a 
 
              whole percentage is simply to use a table contained in the 
 
              AMA guideline to make that transition; is that right?
 
              
 
              A. That's correct.
 
         
 
         (Palmer Dep., Jt. Ex. 12, p. 21)
 
         
 
              On April 8, 1988, Dr. Palmer's report reflects, in part:
 
         
 
              He also complained of his left shoulder.  He complained of 
 
         soreness in the shoulder over the anterior aspect.  He complained 
 
         of a decreased range of motion in the shoulder and inability to 
 
         sleep on his left side.
 
         
 
              He stated that his right shoulder had full range of motion 
 
         with occasional slight soreness.  His right elbow caused him some 
 
         pain from time to time but he
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY
 
         Page 6
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              stated that there was no stiffness in the elbow or loss of 
 
              motion.
 
              
 
                 Mr. Ryan was sent to our therapy department for a full 
 
              evaluation by my physical therapist.  A copy of that report 
 
              is included with this report.  As noted, Mr. Ryan's grip 
 
              strength is diminished in the left hand.  The primary loss 
 
              of muscle strength is in the left upper extremity.  Loss of 
 
              motion in his upper extremities are isolated to the shoulder 
 
              and elbow of his left upper extremity.  He has some slight 
 
              loss of motion in the left shoulder due to adhesive 
 
              capsulitis of the left shoulder.  He has an extension lag of 
 
              the left elbow.
 
         
 
         (Jt. Ex. 10, p. 1)
 
         
 
         
 
              In March of 1987 Dr. Palmer was concerned about the wasting 
 
         of muscles in claimant's left arm.  The doctor's notes around 
 
         this period of time also reflect his conclusion that claimant 
 
         will unlikely be able to return to heavy duty and that claimant 
 
         should consider a new occupation which is sedentary and does not 
 
         require lifting or heavy use of his arms.
 
         
 
              On July 23, 1987, Robert I. Martin, M.D., wrote, pursuant 
 
         to the request of defendant insurance carrier, for an impairment 
 
         rating, as follows:
 
         
 
                 This letter is in response to your July 20, 1987 letter 
 
              regarding Robert Ryan whom I examined on April 29, 1987 at 
 
              your request.  I assume by your letter that you are 
 
              requesting a statement indicating the percentage of 
 
              permanent disability of the right upper extremity this 
 
              gentleman suffered as a result of his December 17, 1984 
 
              accident.  Please understand that I am somewhat hesitant to 
 
              give percentages for several reasons.  The primary one being 
 
              that I feel that this is really the province of the 
 
              arbitrator.  However, if it will be helpful to you, my best 
 
              estimate would be that he has lost in the range of 15 to 
 
              20.percent of the use of the right upper extremity as a 
 
              result of this injury.
 
         
 
         (Jt. Ex. 11, p. 1)
 
         
 
         (The doctor refers to the right upper extremity but it appears he 
 
         meant left upper extremity.)
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY 
 
         Page 7
 
         
 
         
 
              Mercer County Hospital records reflect a report by E. Law, 
 
         M.D., as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              This gentleman has had tennis elbow which has not responded 
 
              to physical therapy at this point.  It occurred after a fall 
 
              when he landed on that area of the supinator of his left 
 
              elbow.  He has been treated splinting, whirlpool and 
 
              exercises and his symptoms have always improved, but never 
 
              gotten back to normal and have recurred immediately with any 
 
              kind of activity utilizing pronation and supination against 
 
              any resistance of the forearm.
 
         
 
         (Jt. Ex. 188, page 226)
 
         
 
              The hospital records reflect claimant had a radial nerve 
 
         release surgery performed by Dr. Law on March 27, 1985.
 
         
 
              Saint Francis Medical Center records reflect the diagnosis 
 
         and operation performed by Dr. Palmer on March 19, 1986 as 
 
         follows:
 
         
 
              PREOPERATIVE DIAGNOSIS:  Left lateral epicodylitis
 
                          with impingement syndrome of left elbow.
 
              
 
              ....
 
              
 
              OPERATION:  SLIDE PROCEDURE COMMON EXTENSORS WITH
 
                          EXCISION OF WINDOW OF RADIAL HUMERAL
 
                          JOINT AND EXCISION OF SYNOVIAL FOLD.
 
         
 
         (Jt. Ex. 3, p. 5)
 
         
 
              The Back-To-Work Center discharge summary of October 29, 
 
         1986 reflects the following, in part:
 
         
 
                 The worker was placed in a 5 day per week work hardening 
 
              program for a total of 7 weeks.  The worker was discharged 
 
              from Work Hardening on 10-27-86 as his Rehabilitation 
 
              Counselor, Valerie Bolton, reported that arrangements had 
 
              been made for the worker to return to his previous 
 
              employment with light duty work not to exceed 20 pounds 
 
              lifting.  The worker is also restricted to no climbing and 
 
              the employer has agreed to work around his restrictions.  
 
              The worker will return to work on 11-5-86.
 
         
 
         (Jt. Ex. 4, p. 1)
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY
 
         Page 8
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An injury to a scheduled member which, because of after 
 
         effects (or compensatory change), creates impairment to the body 
 
         as a whole entitles claimant to industrial disability.  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily v. 
 
         Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v..Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered.... In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 
         
 
              For example, a defendant employer's refusal to give any 
 
         sort of work to a claimant after he suffers his affliction may 
 
         justify an award of disability.  McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The mere fact that the rating pertains to a scheduled 
 
         member does not mean the disability is restricted to a schedule.  
 
         Pullen
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY
 
         Page 9
 
         
 
         
 
         v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa 
 
         Industrial Commissioner Reports 308 (Appeal Decision 1982).
 
         
 
              This 45-year-old claimant has basically earned his living 
 
         the approximate 17 years before his December 17, 1984 injury as a 
 
         commercial sheet metal worker.  Commercial sheet metal work 
 
         involves heavy duty work.  It requires an ability to lift heavy 
 
         objects and perform heavy overhead installation and climbing.  
 
         The parties are in dispute as to the extent of claimant's 
 
         permanent disability.  Of greater dispute is whether this injury 
 
         is only to claimant's left arm-elbow, a scheduled member, or is 
 
         it an injury also to claimant's left shoulder which extends into 
 
         the body as a whole.  Defendants do not contend there is no 
 
         permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The medical testimony often refers to claimant's elbow-arm.  
 
         Claimant incurred two surgeries to his left elbow-arm as a result 
 
         of his December 17, 1984 injury.  Dr. Palmer testified that 
 
         claimant also had a condition referred to as adhesive capsulitis 
 
         or frozen shoulder.  He said this condition is when adhesions 
 
         form between the bone and joint in the shoulder.  Dr. Palmer 
 
         further opined that because of the way claimant used his left 
 
         upper extremity, this led eventually to the development of 
 
         claimant's adhesive capsulitis in his left shoulder.  Dr. Palmer 
 
         opined a 5 percent physical impairment and loss of physical 
 
         function in the whole arm due to loss of motion in claimant's 
 
         shoulder.  Dr. Palmer further described the adhesions in adhesive 
 
         capsulitis as normally forming between the joint surface of the 
 
         prominent humerus and the soft tissue overlying the bursa and 
 
         rotator cuff And in some extent a glenoid which is the cuff 
 
         portion of the shoulder joint.  The doctor indicated a 5 percent 
 
         impairment of the shoulder related to a 3 percent impairment of 
 
         the whole body.  Dr. Palmer opined that the 20 pound lifting 
 
         restriction-with claimant,s left upper extremity and his climbing 
 
         restrictions are related to both the shoulder injury and 
 
         claimant's elbow injury.  The parties agree that claimant had a 
 
         very lengthy healing period, approximately 95 weeks.  Besides 
 
         this functional limitation and restrictions referred to in the 
 
         medical evidence, claimant demonstrated his extension and 
 
         inability to raise his left arm above the shoulder.
 
         
 
              The undersigned finds that what appears originally to be a 
 
         scheduled injury to claimant's left elbow-arm, in fact, has gone 
 
         into claimant's shoulder and resulted in an impairment to 
 
         claimant's body as a whole.  With this determination, we need now 
 
         to determine the extent of claimant's industrial disability.  
 
         Claimant has an impairment to both his left arm and shoulder.  
 
         This impairment to a sheet metal operator is much more serious 
 
         than to one who doesn't rely on the ability to use one's arm and 
 
         shoulder to lift, hold and install sheet metal, ducts and other 
 
         materials of the trade.
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY
 
         Page 10
 
         
 
         
 
              Although it appears that defendant employer was going to 
 
         accommodate claimant in following the medical restrictions upon 
 
         claimant's return to work the latter part of 1986, the greater 
 
         weight of evidence shows the employer did not provide the type of 
 
         work within claimant's restrictions that defendant employer 
 
         agreed to with a therapist.  In fact, in January 1987, defendant 
 
         employer fired claimant.  Claimant found a job as an estimator 
 
         for another sheet metal company.  Claimant no longer makes the 
 
         same income he did before his December 17, 1984 injury.  The 
 
         evidence indicates claimant is making several thousands of 
 
         dollars per year less now than he did at the time of his injury.  
 
         Claimant no longer has the opportunity to increase his income 
 
         through overtime nor does he now get all the same fringe benefits 
 
         that amounted to substantial economic benefits before his 
 
         December 17, 1984 injury.  Loss of income is not the criteria for 
 
         determining industrial disability but is one of the items to 
 
         consider in determining loss of earning capacity, which is the 
 
         main criteria.  Since it is found there is a body as a whole 
 
         impairment, McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980) may also be applicable because of claimant's refusal to 
 
         rehire claimant.  Claimant has a substantial loss of earning 
 
         capacity.  Taking into consideration claimant's age, education, 
 
         the fact he had no shoulder or arm problems prior to his December 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         17, 1984 injury, the approximate one year and ten months of 
 
         healing period, his loss of income, permanent restrictions and 
 
         impairment, and the other items, including defendant employer's 
 
         refusal to rehire claimant, that are considered in determining 
 
         one's industrial disability, the undersigned finds claimant has a 
 
         35 percent industrial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant's permanent partial impairment to his body as a 
 
         whole resulting from claimant's elbow-arm and shoulder injury is 
 
         a result of claimant's work-related injury on December 17, 1984.
 
         
 
              2. Claimant incurred two surgeries to his left elbow-arm as 
 
         a result of claimant's work-related injury on December 17, 1984.
 
         
 
              3. Claimant's initial injury to his left arm on December 
 
         17, 1984 ultimately resulted in claimant incurring a frozen 
 
         shoulder resulting in an ultimate permanent partial impairment to 
 
         claimant's body as a whole.
 
         
 
              4. Claimant incurred permanent restrictions of no lifting 
 
         over 20 pounds and no climbing as a result of his December 17, 
 
         1984 work-related injury.
 
         
 
              5. The parties stipulated that claimant was entitled to 
 
         95.571 weeks of healing period benefits, which have been paid.
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY
 
         Page 11
 
         
 
         
 
              6. Defendant employer fired claimant shortly after claimant 
 
         returned to work with restrictions resulting from his December 
 
         17, 1984 work injury.
 
         
 
              7. Claimant has a loss of earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's arm-elbow and shoulder impairment and ultimate 
 
         impairment to the body as a whole arose out of and in the course 
 
         of claimant's employment on December 17, 1984.
 
         
 
              Claimant's arm-elbow, shoulder and body as a whole 
 
         impairment is casually connected to claimant's work injury on 
 
         December 17, 1984.
 
         
 
              Defendant employer fired claimant shortly after claimant 
 
         returned to work with restrictions resulting from his December 
 
         17, 1984 work injury.
 
         
 
              Claimant incurred permanent restrictions of no lifting over 
 
         20 pounds and no climbing as a result of his December 17, 1984 
 
         work-related injury.
 
         
 
              Claimant has a 35 percent industrial disability.
 
         
 
                                      ORDER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant one hundred 
 
         seventy-five weeks of permanent partial disability benefits at 
 
         the rate of three hundred thirty-eight and 98/100 dollars 
 
         ($338.98) per week beginning July 23, 1987.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Defendants have only paid the healing 
 
         period benefits agreed to of ninety-five point seven one four 
 
         (95.714) weeks at the weekly rate of three hundred thirty-eight 
 
         and 98/100 dollars ($338.98).
 
         
 
              That defendants shall pay interest on tho benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         RYAN V. THE SCHEBLER COMPANY
 
         Page 12
 
         
 
         
 
              Signed and filed this 21st day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                               BERNARD J. O'MALLEY
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
          
 
          Copies to:
 
          
 
          Mr James M Hood
 
          Attorney at Law
 
          302 Union Arcade Bldg
 
          Davenport IA 52801
 
          
 
          Mr Thomas J Shields
 
          Attorney at Law
 
          600 Davenport Bank Bldg
 
          Davenport IA 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               1803.1; 1807; 51803
 
                                               Filed February 21, 1990
 
                                               Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT RYAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 784316
 
         THE SCHEBLER COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CHUBB GROUP OF INSURANCE 
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803.1
 
         
 
              Found claimant's injury involved the left elbow-arm and 
 
         shoulder which extended into the body as a whole.
 
         
 
         1807
 
         
 
              Defendant employer fired claimant shortly after claimant 
 
         returned to work with restrictions resulting from his work 
 
         injury.  McSpadden case and refusal to rehire affected the extent 
 
         of claimant's industrial disability.
 
         
 
         51803
 
         
 
              Found claimant had a 35% industrial disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
                        
 
 
 
                    
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ESTOLIA BERNAL,
 
         
 
              Claimant,                             File No. 784318
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         FIRESTONE TIRE & RUBBER                    D E C I S I O N
 
         COMPANY,
 
         
 
              Employer,                                F I L E D
 
         
 
         and                                          JUN 06 1988
 
         
 
         CIGNA INSURANCE COMPANY,             IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Estolia 
 
         Bernal against Firestone Tire & Rubber Company, her employer, and 
 
         Cigna, the employer's insurance carrier.
 
         
 
              The case was heard and fully submitted on October 26, 1987 
 
         at Des Moines, Iowa.  The record in this proceeding consists of 
 
         testimony from Sherry Lundquist, Estolia Bernal, Lino G. Bernal 
 
         and Roger Marquardt.  The record also contains claimant's 
 
         exhibits 1, 2, 4 and 7 and defendants' exhibit 3.
 
         
 
                                      ISSUES
 
         
 
              It was stipulated that claimant sustained an injury which 
 
         arose out of and in the course of her employment and that she had 
 
         been paid all healing period compensation which was due at the 
 
         stipulated rate of compensation of $306.06 per week.  Claimant 
 
         seeks additional compensation for permanent partial disability 
 
         and alleges that her disability extends into the body as a whole 
 
         and should be evaluated industrially.  Defendants contend that 
 
         claimant's permanent disability is a scheduled member disability 
 
         of the arm for which claimant has been fully compensated by 
 
         payment of 50 weeks of permanent partial disability compensation 
 
         benefits.
 
         
 
                               SUMMARY 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.
 
         
 
              Estolia Bernal is a 54-year-old, married lady who has been 
 
         employed by Firestone Tire & Rubber Company since 1974.  She 
 
         relates that her formal education, which she had obtained in 
 
         Mexico, was equivalent to the sixth grade.  Prior to working at 
 
         Firestone, she had been employed as a housekeeper, as a sewing 
 
         machine operator and in a department store retail warehouse.
 
         
 
              According to claimant's testimony, she has held a number of 
 
         different positions at Firestone, including that of tire builder, 
 
         janitor and bead builder.
 
         
 
              On January 2, 1985, she was working in the reroll liner 
 
         department training another employee when her left arm was caught 
 
         in the machine and pulled into it up to her shoulder.  Sherry 
 
         Lundquist, a co-worker, released claimant from the machine and 
 
         requested medical service.
 
         
 
              Claimant testified that most of the pain she felt was in her 
 
         back and shoulder and that it felt like her arm had been pulled 
 
         out.  She states that she had pain in her wrist and in her entire 
 
         arm.
 
         
 
              Claimant was taken to Methodist Hospital where x-rays 
 
         revealed a fracture of the left distal ulna.  Claimant was 
 
         treated by Stephen G. Taylor, M.D., an orthopaedic surgeon.  
 
         Claimant was treated by cast immobilization and was released to 
 
         return to work on July 9, 1985.  During the course of treatment, 
 
         claimant complained of pain in her left shoulder which Dr. Taylor 
 
         attributed to the period of immobilization and the weight of the 
 
         cast.  Dr. Taylor felt that claimant had not sustained any 
 
         permanent partial impairment as a result of the injury.  Claimant 
 
         was released to return to work without any restrictions on July 
 
         9, 1985 (exhibit 1--Dr. Taylor report dated July 30, 1985).
 
         
 
              Claimant worked with a great deal of discomfort in her 
 
         shoulder and was allowed to seek treatment from Marvin H. 
 
         Dubansky, M.D., an orthopaedic surgeon, who first saw her on 
 
         October 2, 1985.  Diagnostic tests revealed a tear of her left 
 
         rotator cuff which was surgically repaired by Dr. Dubansky on 
 
         January 17, 1986 (exhibit 1--Dr. Dubansky, pages 1-4; exhibit 
 
         1--Mercy Hospital, report of operation, page 9).
 
         
 
              After a period of recuperation, claimant was authorized to 
 
         return to employment at Firestone in a light-duty status.  There 
 
         were some problems with the job to which she was initially 
 
         assigned.  Eventually, she obtained her present job assignment of 
 
         driving a forklift truck.  Claimant testified that, if a tire 
 
         falls off a skid on the forklift, she has to replace it on the 
 
         skid.  She stated that she operates the steering and the raising 
 
         and lowering of the forklift with her right arm and that she 
 
                                                
 
                                                         
 
         operates the forward or backward directional lever with her left 
 
         arm.  Claimant currently earns $9.82 per hour, the same amount as 
 
         she would be earning in the reroll department if she had remained 
 
         there without being injured.  Claimant testified that she plans 
 
         to remain employed and working at Firestone until age 60 when she 
 
         can obtain her pension.
 
         
 
              Claimant complained that she continues to experience pain 
 
         and discomfort in her entire left arm and shoulder.  She stated 
 
         that the fingers in her left hand become numb and cold.  She 
 
         stated that the pain is usually mild, but that, at times, it 
 
         becomes sharp.  She described the pain as starting at the base of 
 
         her neck.  Claimant's husband massages her and she takes aspirin 
 
         to help relieve the pain.  Claimant demonstrated restricted 
 
         motion of her left arm and complained of restriction and weakness 
 
         when attempting to lift with the left arm.  Claimant's complaints 
 
         regarding her pain and use of her left arm were corroborated by 
 
         her husband, Lino G. Bernal.
 
         
 
              Roger Marquardt, a qualified vocational consultant, 
 
         evaluated claimant's vocational capabilities.  Marquardt 
 
         classified claimant as being limited to unskilled or semi-skilled 
 
         light or sedentary work.  Marquardt indicated that, if claimant 
 
         were forced out of her job at Firestone, she would likely sustain 
 
         a very substantial loss in earnings unless she were able to 
 
         obtain another forklift operator job at another industrial plant.  
 
         He estimated that, if she were forced out at Firestone and could 
 
         not obtain a similar forklift operator job, her earnings would be 
 
         less than 50% of her current pay level.
 
         
 
              Dr. Dubansky evaluated claimant's permanent physical 
 
         impairment.  He found her to have an 8% impairment of the left 
 
         upper extremity as a result of loss of range of motion and an 
 
         additional 12% permanent impairment of that extremity as a result 
 
         of pain and weakness (exhibit 7, pages 23, 24 and 27).  He found 
 
         the impairment to be equivalent to a 12% impairment of the body 
 
         as a whole (exhibit 7, pages 17 and 18).  Dr. Dubansky indicated 
 
         that the surgery had improved claimant's condition, but that her 
 
         residual complaints were consistent with the type of injury that 
 
         she had sustained and that full strength is never regained 
 
         following a rotator cuff tear injury (exhibit 7, pages 7-13).
 
         
 
              Dr. Dubansky opined that claimant's rotator cuff tear was 
 
         sustained in the accident that occurred at Firestone on January 
 
         2, 1985 (exhibit 7, page 14).  Dr. Dubansky found that claimant 
 
         had no permanent impairment as a result of the fractured ulna 
 
         (exhibit 7, page 19).  He declined to relate claimant's neck 
 
         complaints to the January 2, 1985 injury (exhibit 7, page 17).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              It was stipulated that claimant sustained an injury which 
 
         arose out of and in the course of her employment as she alleged. 
 
         The evidence from Drs. Taylor and Dubansky agreed that the 
 
         fracture of the left ulna had not produced any permanent 
 
                                                
 
                                                         
 
         impairment and their determination is accepted as correct.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 2, 1985 is causally 
 
         related to the disability on which she now bases her 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).
 
         
 
              Dr. Dubansky attributes the rotator cuff tear to the injury 
 
         that occurred on January 2, 1985.  His assessment is accepted as 
 
         correct.  Claimant's neck complaints are not shown to have 
 
         resulted from the January 2, 1985 accident.
 
         
 
              The primary issue in this case is whether claimant's 
 
         disability should be compensated as a scheduled member disability 
 
         of the arm under the provisions of Iowa Code section 85.34(2)(m) 
 
         as defendants contend or whether it should be compensated 
 
         industrially as an injury to the body as a whole under the 
 
         provisions of Iowa Code section 85.34(2)(u) as claimant contends. 
 
         For an injury which results from trauma to a scheduled member to 
 
 
 
                               
 
                                                         
 
         be compensated industrially, claimant must prove (1) that there 
 
         is physical injury or derangement that is anatomically located at 
 
         a site other than the scheduled member; (2) that the physical 
 
         injury or derangement produces functional impairment and 
 
         disability; and, (3) that the physical injury, derangement, 
 
         functional impairment and disability were proximately caused by 
 
         the trauma to the scheduled member.  Lauhoff Grain Co. v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986); Kellogg v. Shute & Lewis 
 
         Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964); Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              It has been found that the tear of claimant's left rotator 
 
         cuff occurred in the trauma that occurred on January 2, 1985.  
 
         The rotator cuff is defined in Schmidt's Attorneys' Dictionary of 
 
         Medicine as:
 
         
 
              A structure consisting of muscle and tendon fibers blending 
 
              with and thus strengthening the upper half of the capsule of 
 
              the shoulder joint.  The shoulder joint is formed by the 
 
              head of the humerus (bone of upper arm) and the glenoid 
 
              cavity of the scapula (shoulder blade).  The tendons which 
 
              contribute to the formation of the cuff are those of the 
 
              supraspinatus, intraspinatus, teres minor, and subscapularis 
 
              muscles.  The capsule is a tough sac surrounding and 
 
              strengthening a joint. The rotator cuff is also known as the 
 
              musculotendinous cuff.
 
         
 
              Dorland's and Stedman's medical dictionaries generally refer 
 
         to the arm as a part of the upper extremity that runs from the 
 
         shoulder to the hand.  Those references also define the shoulder 
 
         as the junction of the clavicle and the scapula or the point 
 
         where the arm joins the trunk.  Agency expertise, pursuant to 
 
         Iowa Code section 17A.14(5), is relied upon to acknowledge that 
 
         the medical profession normally includes the scapula and the 
 
         entire shoulder girdle within its definition of the upper 
 
         extremity.  While the arm is part of the upper extremity, the 
 
         upper extremity is not limited to the arm.  If the arm is 
 
         considered to end at the head of the humerus, the operative 
 
         report from Dr. Dubansky and Mercy Hospital clearly shows that 
 
         claimant's physical injury and derangement includes the 
 
         anatomical parts of the body which are located on the trunk side 
 
         of the shoulder joint and which include part of the trunk side of 
 
         the shoulder joint.
 
         
 
              The operative report and other evidence in the record fail 
 
         to show any significant anatomical change in claimant's arm which 
 
         is responsible for her weakness and restricted motion.  It is the 
 
         defect in the trunk side of the shoulder joint that is primarily 
 
         responsible for producing the pain, weakness and general loss of 
 
         use of claimant's left arm.  It is therefore concluded that 
 
         claimant's injury is an injury to the body as a whole to be 
 
         compensated industrially under the provisions of Iowa Code 
 
         section 85.34(2)(u).
 
         
 
              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).
 
         
 
              Post-injury earnings create a presumption of earning 
 
         capacity commensurate with them, but it is rebuttable by evidence 
 
         showing them to be an unreliable basis for estimating earning 
 
         capacity. Michael v. Harrison County, 34th Biennial Report, 218 
 
         (1979). Post-injury earnings are not synonymous with earning 
 
         capacity.  2 Larson Workmen's Compensation, sections 57.21-and 
 
         57.31. Industrial disability or loss of earning capacity in a 
 
         workers' compensation case is quite similar to 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 to be determined, however, 
 
         is the reduction in value of the general earning capacity of the 
 
         person rather than the loss of wages or earnings in a specific 
 
         occupation.  Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) 100 A.L.R.3d 143; 2 Larson Workmen's 
 
         Compensation, sections 57.21 and 57.31.
 
         
 
              Claimant has been able to continue with her employment at 
 
         Firestone and has not suffered the loss of earnings which 
 
         Marquardt quite accurately indicated would likely occur if she 
 
         were to lose her employment at Firestone.  It must be noted that 
 
         she would likely suffer a comparable loss of earnings if she were 
 
         to lose her employment at Firestone, even if the injury which is 
 
         the subject of this litigation had not occurred.  Claimant's 
 
         continued employment at Firestone does not appear to be in 
 
         jeopardy.  It does not appear likely that she will be forced to 
 
         take the actual reduction in wages which would confront her if 
 
         her Firestone employment ended.  The only thing which is certain 
 
         about the future, however, is its inherent uncertainty.  It 
 
         cannot be concluded that claimant has suffered no industrial 
 
         disability in view of the fact that she does have a substantial 
 
         loss of use of her left arm.  It would detract from her 
 
         employability in many positions which would otherwise be open to 
 
         her.  When all the applicable factors of industrial disability 
 
         are considered, it is found and concluded that Estolia Bernal has 
 
         sustained a 15% permanent partial disability as a result of the 
 
         injuries she sustained on January 2, 1985 at the Firestone 
 
         plant.
 
                                                
 
                                                         
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Estolia Bernal is a resident of the state of Iowa who 
 
         was injured on January 2, 1985 at the Firestone plant in Des 
 
         Moines, Iowa.
 
         
 
              2.  The accident in which she was injured produced a 
 
         fracture of her distal left ulna and a tear of the rotator cuff 
 
         in her left shoulder.
 
         
 
              3.  The fracture of the left ulna healed without any 
 
         residual permanent functional impairment or disability.
 
         
 
              4.f The rotator cuff tear was surgically repaired, but has 
 
         left claimant with residual loss of range of motion, weakness and 
 
         discomfort in her left upper extremity.
 
         
 
              5.f The residual impairment and disability is manifested 
 
         primarily in claimant's ability to use her left arm, but the 
 
         physiological injury which is responsible for the loss of her 
 
         ability to use her left arm is located on the trunk side of the 
 
         shoulder joint and its associated structures.  There is little, 
 
         if any, actual impairment, disability or physical derangement of 
 
         the structures which comprise claimant's left arm.
 
         
 
              6.  The assessment and disability ratings as made in this 
 
         case by Dr. Dubansky are accepted as correct.
 
         
 
              7.  The term "upper extremity" includes the arm, but is not 
 
         limited to the arm, and also includes the scapula and shoulder 
 
         girdle.
 
         
 
              8.  Claimant has a 15% loss of earning capacity as a result 
 
         of the injuries of January 2, 1985.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The rotator cuff tear which claimant sustained 
 
         constitutes an injury to the body as a whole and proximately 
 
         caused permanent disability which affects the body as a whole.
 
         
 
              3.  Claimant is entitled to receive compensation under the 
 
         provisions of Iowa Code section 85.34(2)(u).
 
         
 
              4.  When claimant's permanent disability is evaluated 
 
         industrially, it is determined to be a 15% permanent partial 
 
         disability.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
                                                
 
                                                         
 
         seventy-five (75) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred six and 06/100 
 
         dollars ($306.06) per week payable commencing April 10, 1986.  
 
         Defendants are granted credit for the fifty (50) weeks of 
 
         permanent partial disability compensation previously paid.  The 
 
         remaining twenty-five (25) weeks are past due and owing and shall 
 
         be paid to claimant in a lump sum together with interest pursuant 
 
         to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 6th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas Henderson
 
         Attorney at Law
 
         1300 First Interstate Bank Bldg
 
         Des Moines, Iowa  50309
 
                                
 
                                                         
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803.1
 
                                            Filed June 6, 1988
 
                                            MICHAEL G. TRIER
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ESTOLIA BERNAL,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         FIRESTONE TIRE & RUBBER                     File No. 784318
 
         COMPANY,
 
                                                 A R B I T R A T I 0 N 
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Fifty-four-year-old claimant, who suffered a rotator cuff 
 
         tear, was held to have suffered an injury to the body as a whole. 
 
         Where she was retained in her employment without any loss of 
 
         earnings and the employment appeared stable, she was awarded 15% 
 
         permanent partial disability.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY FRANKS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 784334
 
            CITY OF COUNCIL BLUFFS,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ARGONAUT INSURANCE CO.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case, with the following additional analysis:
 
            Claimant's age makes retraining a possibility.  Claimant 
 
            expressed an inability to support his family if he underwent 
 
            retraining.  Claimant is presently without employment.  
 
            Retraining is feasible.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the appeal transcript. 
 
            Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael Murphy
 
            Attorney at Law
 
            100-101 Park Bldg.
 
            Council Bluffs, Iowa 51501
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd, Suite 16
 
            Des Moines, Iowa 50312