Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ARLENE HEATON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 786195
 
                                          :                954386
 
            PELLA ROLSCREEN COMPANY,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On June 21, 1989 and November 21, 1990, Arlene Heaton 
 
            (claimant) filed petitions for arbitration as a result of 
 
            injuries to claimant's arm and shoulder occurring on January 
 
            25, 1984 and March 1, 1989 respectively.  Pella Rolscreen ( 
 
            Pella) was identified as employer and Employers Mutual 
 
            Company was identified as the workers' compensation insurer 
 
            for Pella (collectively defendants).  On July 15, 1991, 
 
            these matters came on for hearing in Des Moines, Iowa.  The 
 
            parties appeared as follows:  the claimant in person and by 
 
            her counsel Arthur Hedberg of Des Moines, Iowa and Pella and 
 
            Employers Mutual by their counsel D. Brian Scieszinski of 
 
            Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, Sue Pelong and 
 
            Myron Linn.  
 
            
 
                 2.  Joint exhibit 1, pages 1-113.
 
            
 
                 3.  Defendants' exhibit A-D.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters for 
 
            both injuries at the time of the hearing:
 
            
 
                 a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 b.  The claimant sustained an injury on January 25, 
 
            1984, 1989, which arose out of and in the course of 
 
            employment.
 
            
 
                 c.  The claimant sustained an injury on March 1, 1989, 
 
            which arose out of and in the course of employment.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 d.  The alleged injuries caused a temporary disability.
 
            
 
                 e.  The alleged injuries caused a permanent disability.
 
            
 
                 f.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period, for the 
 
            1984 injury is stipulated to be 79 weeks ending on March 23, 
 
            1988.
 
            
 
                 g.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, for the 1984 
 
            injury is a scheduled member injury.
 
            
 
                 h.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, for the 1989 
 
            injury is industrial disability to the body as a whole.
 
            
 
                 i.  The commencement date for permanent partial 
 
            disability, for the 1984 injury is March 23, 1988.
 
            
 
                 j.  The commencement date for permanent partial 
 
            disability, for the 1989 injury is March 1, 1989.
 
            
 
                 k.  The rate of compensation, in the event of an award 
 
            for the 1984 injury, is $204.98 per week based on a gross 
 
            wage of $327 per week.  At the time of the first injury 
 
            claimant was single and had two children.  She is entitled 
 
            to three exemptions.
 
            
 
                 l.  The rate of compensation, in the event of an award 
 
            for the 1989 injury, is $228.39 per week based on a gross 
 
            wage of $366.93 per week.  At the time of the first injury 
 
            claimant was single and had one child.  She is entitled to 
 
            two exemptions.
 
            
 
                 m.  The parties agree that medical benefits are no 
 
            longer in dispute.
 
            
 
                 n.  Defendants have paid the following benefits prior 
 
            to hearing:
 
            
 
                        Injury Date  Weeks Paid                 
 
                 Rate
 
            
 
                  1984 injury   79 weeks(Heal. Per)      
 
            $204.98
 
                  1989 injury   37.5 weeks(PPD)          
 
            $204.98 
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Issue
 
 
 
                 The only issue for resolution for both of these 
 
            injuries is the extent of any entitlement to benefits owed 
 
            to claimant.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing, claimant was 41 years 
 
            of age.  At the time of the first injury in this matter, 
 
            claimant was 34 years old.  At the time of the second 
 
            injury, in 1989, claimant was 39 years old.  Claimant's 
 
            formal education ended after her junior year in high school.  
 
            She left school in 1967 and has never obtained a GED. 
 
            Claimant was an average student.
 
            
 
                 2.  After claimant left high school, she worked in an 
 
            overall factory in Pella from November of 1976 to December 
 
            1976.  Thereafter, she began working for Pella in January of 
 
            1977 to the present date.  Claimant has also worked on a 
 
            part time basis for Avon since 1988.  Claimant continues as 
 
            an Avon representative to date.
 
            
 
                 3.  Claimant has had various work assignments since she 
 
            began her employment with Pella in 1977.  Additionally, 
 
            claimant has received merit wage increases and cost of 
 
            living increases on a periodic basis.  In 1984, claimant was 
 
            running a power screwdriver that she had been using for a 
 
            couple of years to build window sashes.  She was required to 
 
            screw five screws in each sash for eight hours per day.  
 
            This was repetitive work that required her to squeeze a 
 
            trigger and bear down on the power screwdriver to make the 
 
            window sashes.  
 
            
 
                 4.  On January 25, 1984, claimant was experiencing 
 
            severe pain in her right arm.  Claimant was referred to 
 
            Arnis Grundberg, M.D., for treatment.  Dr. Grundberg found 
 
            that claimant was suffering from right carpal tunnel 
 
            syndrome, right lateral epicondylitis, and right cubital 
 
            tunnel.  As a result of this diagnosis, Dr. Grundberg 
 
            operated on claimant to correct these problems.  Dr. 
 
            Grundberg decompressed the lateral epicondylitis, the right 
 
            cubital tunnel and did a decompression of the right carpel 
 
            tunnel.  
 
            
 
                 5.  Claimant's post operative recovery was unremarkable 
 
            and she was released to return to work on April 8, 1985.  
 
            Dr. Grundberg imposed restrictions on claimant which 
 
            included no pushing, pulling or lifting over five pounds 
 
            with the right hand and no use of the power screwdriver.
 
            
 
                 6.  Claimant continued to have difficulties with her 
 
            right upper extremity during 1986.  On August 5, 1986, Dr. 
 
            Grundberg gave claimant a permanent impairment rating of 
 
            14.5 percent for her right arm for the right carpal tunnel 
 
            syndrome and the other surgeries that he performed.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 7.  Claimant continued to have pain complaints in her 
 
            right upper extremity, and was seen by Scott Neff, M.D., on 
 
            August 13, 1986.  During that examination, claimant 
 
            complained of persistent pain in the right elbow and 
 
            numbness and tingling in her right hand.  Dr. Neff concluded 
 
            that claimant might have thoracic outlet syndrome and 
 
            referred claimant to Alexander Matthews, M.D.  Before 
 
            claimant saw Dr. Matthews, she had a functional capacity 
 
            evaluation with Tom Bower, a licensed physical therapist.  
 
            The claimant's EMG tests showed that aspects of the exam 
 
            were within normal limits on the right side.  However, 
 
            claimant continued to complain of pain in her right hand and 
 
            forearm with grip loss, intermittent tingling and numbness 
 
            and persistent nocturnal parasthesias.  At the time of this 
 
            evaluation, claimant was building muntins for windows.  This 
 
            involved operating a power glue gun and gluing two pieces of 
 
            wood together.  The nerve conduction studies revealed that 
 
            there was an increase in the amplitude at the proximal 
 
            median nerve conduction which was slightly abnormal but not 
 
            outside the range of a normal nerve conduction study.  After 
 
            Dr. Neff received the results from the study, claimant was 
 
            referred to Dr. Matthews for thoracic outlet syndrome.
 
            
 
                 8.  Dr. Matthews examined claimant on November 30, 
 
            1986, and concluded that she was suffering from thoracic 
 
            outlet compression syndrome.   Dr. Matthews performed the 
 
            transaxillary resection of the first right rib on December 
 
            1, 1986.  After the surgery, claimant's condition had 
 
            improved significantly in that she was no longer complaining 
 
            of numbness and tingling.
 
            
 
                 9.  On March 16, 1987, claimant was returned to work on 
 
            a part time basis.  She was to work twenty hour per week.  
 
            Claimant was seen by Dr. Matthews in April and reported that 
 
            she was experiencing pain in her right forearm and elbow 
 
            with shooting pain into her wrist.  Dr. Matthews noted that 
 
            claimant had a right grip reduction of about 50 percent.  He 
 
            did decide, however, to continue her on a limited work 
 
            basis.  
 
            
 
                 10. Through the spring, claimant continued to complain 
 
            of a weak grip and weakness in flexion and extension in her 
 
            wrist.  On June 3, 1987, Dr. Matthews concluded that 
 
            claimant needed a neurological consultation and referred her 
 
            to Steven R. Adelman, D.O.  Dr. Adelman examined claimant 
 
            and found that claimant had no clinical evidence of a 
 
            cervical radiculopathy or entrapment neuropathy of the right 
 
            upper extremity.  Dr. Adelman found that claimant's 
 
            continuing complaints appeared to be musculoskelatal in 
 
            nature with a component of tennis elbow.  Dr. Adelman 
 
            concluded after his examination that if claimant had not 
 
            recovered in the last two or three years he would be 
 
            skeptical as to whether she would ever be able to return to 
 
            work on a full time basis.
 
            
 
                 11. Claimant returned to see Dr. Matthews in October 
 
            and he was at a loss as to what form of treatment he should 
 
            prescribe next.  Consequently, he referred claimant to Dr. 
 
            Neff for an evaluation.  On October 13, 1987 Dr. Matthews 
 
            did impose a five pound lifting restriction on claimant and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            to avoid pressure and use of the right arm.
 
            
 
                 12. On October 29, 1987, Dr. Neff examined claimant and 
 
            could really attribute no cause to her degree of symptoms.  
 
            He reviewed the fact that claimant had been examined by Mr. 
 
            Bower and she did not have a detectable grip strength which 
 
            was extremely unusual.  In December of 1987, Dr. Matthews 
 
            again examined claimant and reported that there was no 
 
            change in her symptoms or findings.  Dr. Matthews indicated 
 
            that claimant's current symptoms were not related to her 
 
            thoracic outlet syndrome.
 
            
 
                 13. In early 1988, both Dr. Matthews and Dr. Neff 
 
            examined claimant.  They concluded that claimant's pathology 
 
            is based at the elbow and forearm level.  They did a repeat 
 
            EMG study but claimant did not tolerate the procedure very 
 
            well.  From the study that Mr. Bower was able to complete, 
 
            Dr. Neff felt that claimant's EMG study was normal.  
 
            However, since the EMG study was not showing evidence of a 
 
            specific median nerve or ulnar nerve entrapment, Dr. Neff 
 
            referred claimant to Iowa City for further examination.
 
            
 
                 14. In February of 1988, doctors at the University of 
 
            Iowa examined claimant's right upper extremity.  The 
 
            University of Iowa specialists could not trace her right 
 
            elbow pain to any source and they concluded that the right 
 
            elbow pain was of unknown etiology and simply recommended 
 
            conservative treatment.  At that juncture, there was no 
 
            surgical procedure that would relieve claimant from her pain 
 
            complaints.
 
            
 
                 15. After claimant returned from the University of Iowa 
 
            examination, Dr. Neff examined her in March of 1988.  At 
 
            that time, he recommended that claimant stay on permanent 
 
            part time work to alleviate her elbow pain.  
 
            
 
                 16. In April of 1988, Dr. Neff assigned a fifteen 
 
            percent permanent functional impairment to claimant's arm.  
 
            Dr. Neff based his rating on the absence of EMG 
 
            abnormalities and no documented neurological involvement.  
 
            He concluded that claimant's right shoulder was not 
 
            contributing to her rating.  He noted that claimant had a 
 
            fifteen degree loss of range of motion in the right elbow 
 
            and persistent muscle weakness.  The range of motion would 
 
            account for ten percent of the permanent functional 
 
            impairment and five percent was attributable to persistent 
 
            muscle weakness and inability to tolerate repetitious 
 
            activity.
 
            
 
                 17. Thereafter, Pella approached Dr. Neff in an effort 
 
            to have claimant become fully employed.  Pella devised a 
 
            work program for claimant where she would be rotating 
 
            positions on a part time basis.  Dr. Neff viewed a video 
 
            tape of claimant's work duties and agreed that if she 
 
            rotated jobs this would be acceptable and she could be 
 
            released for full time employment.  As part of her combined 
 
            job, claimant would build muntins and cut screen channels.  
 
            Claimant was then released for full time employment on 
 
            August 31, 1988.  
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 18. On March 1, 1989, claimant began reporting shoulder 
 
            pain.  Claimant was eventually referred to Dr. Matthews, who 
 
            examined claimant and found that she had shoulder 
 
            impingement with radial neuropathy in the right upper 
 
            extremity.(1)  At that point, claimant had a repeat EMG study 
 
            done.  However, the portions of the study that were 
 
            completed were all within normal limits.  Again, claimant 
 
            did not tolerate the needle procedure and the results of the 
 
            examination were limited in that regard.
 
            
 
                 19. In October of 1989, claimant was referred to Dr. 
 
            Neff for further evaluation of her shoulder.  Dr. Neff found 
 
            that claimant was suffering from impingement syndrome of the 
 
            right shoulder and instability of the right shoulder.  He 
 
            noted that claimant had been working for the last 6 or 7 
 
            months and had been developing more difficulty with her 
 
            right shoulder.  She was doing repetitive work with a rapid 
 
            motion side to side with her right arm.  Upon manipulation 
 
            of the joint, Dr. Neff was able to elicit a definite 
 
            subacromial synovial crepitus or clicking which was felt 
 
            when claimant lifted her arm overhead.  Additionally, he 
 
            noted tenderness with anterior stress on her shoulder.  An 
 
            MRI study of the right upper extremity was performed on 
 
            October 31, 1989.  The MRI showed a well defined rotator 
 
            cuff with no tears.  The acromioclavicular joint showed 
 
            hypertrophy of the capsule without significant impingement.  
 
            The MRI did not show any significant joint effusion and the 
 
            glenoid labrum appeared intact.  The MRI did show mild 
 
            subacromial bursitis associated with a hypertrophic spur on 
 
            the acromion.  In November when Dr. Neff reviewed the study, 
 
            he concluded that claimant had a spur on the inferior aspect 
 
            of the acromion with subacromial bursitis.  This finding 
 
            supported his conclusion that claimant was suffering from 
 
            impingement syndrome.  He recommended a series of injections 
 
            for claimant and noted that by December 1 claimant had 
 
            improved.  Dr. Neff concluded that claimant's repetitive 
 
            side to side activity for eight hours per day had caused 
 
            frictional changes in her subacromial bursa and rotator cuff 
 
            tissues.  This had resulted in an impingement syndrome.  At 
 
            that point, no surgery was recommended.  However, Pella 
 
            would need to alter claimant's jobs to avoid side to side 
 
            work.
 
            
 
                 20. In 1990, when claimant was released to return to 
 
            work.  In her January 29 performance evaluation, Sue Pelong 
 
            noted that claimant needed to have a job that kept her busy 
 
            100 percent of the time.  
 
            
 
                 21. Claimant continued to complain of pain and in 
 
            February 1990 was again examined by Dr. Neff.  He reviewed 
 
            (1).  Impingement syndrome or painful arc syndrome occurs in 
 
            the musculature and tendons and bursa around the shoulder 
 
            when an inflammatory or a friction related process occurs.  
 
            This condition is usually found or above shoulder height and 
 
            can be caused by polishing, scrubbing, throwing, or 
 
            swimming.  It is more commonly associated with overhead work 
 
            but it can be seen with repetitious activities in a forward 
 
            or backward maneuver or side to side maneuver if the arm is 
 
            elevated.  Typically the condition is not caused by a single 
 
            activity, it is caused by repetitious activity over a period 
 
            of time.
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            recent plain x-ray films from Mercy which were unremarkable 
 
            and the MRI study which showed that the rotator cuff was 
 
            normal and the acromioclavicular joint was now only showing 
 
            a minimal hypertrophy of the capsule.  Additionally, Dr. 
 
            Neff noted that the glenoid labrum was normal.
 
            
 
                 22. In June of 1990, claimant was evaluated by Jerome 
 
            G. Bashara, M.D.  Dr. Bashara reviewed the records from Dr. 
 
            Grundberg, Iowa Methodist, Lutheran Hospital, Dr. Matthews, 
 
            Dr. Adelman, University of Iowa, Mercy, and Dr. Neff.  After 
 
            reciting a fairly detailed history of claimant's injuries 
 
            and treatment, Dr. Bashara noted that claimant's current 
 
            symptoms included continuing pain in her right shoulder.  
 
            Additionally, he noted that she had tingling in her right 
 
            hand and loss of grip and strength.  After examination, Dr. 
 
            Bashara concluded that claimant was suffering from 
 
            impingement syndrome of the right shoulder.  He also 
 
            concluded that this condition was related to some repetitive 
 
            work activities from her occupation.  Dr. Bashara gave her a 
 
            four percent partial permanent impairment of the upper 
 
            extremity which converted into a two percent impairment of 
 
            the body as a whole.  He recommended that claimant not work 
 
            at eye level.  
 
            
 
                 23. In August 1991, claimant was again examined by Mr. 
 
            Bower and Dr. Neff.   She was seen for an impairment rating 
 
            and pain complaints.  Dr. Neff noted that claimant had been 
 
            given a 15 percent impairment rating previously for her 
 
            right upper extremity.  In his examination in August, 
 
            claimant's right arm showed a full range of motion in the 
 
            right shoulder.  Dr. Neff could find no crepitation either 
 
            on active or passive movements in the glenohumeral joint.  
 
            The right elbow range of motion still showed a fifteen 
 
            degree extension loss.  Claimant had negative Phalen's and 
 
            Tinel's signs at the wrist and elbow.  Claimant's nerve 
 
            conduction velocity for the ulnar and median motor and 
 
            sensory nerves were completely normal.  Claimant's grip 
 
            measurements were still inconsistent with her condition.  
 
            Dr. Neff concluded that claimant was preoccupied with pain.  
 
            He found that there was no injury to the body as a whole and 
 
            that claimant's injury was limited to the right upper 
 
            extremity to the extent of a permanent partial impairment of 
 
            fifteen percent.
 
            
 
                 24. At the time of the hearing, claimant was still 
 
            working full time at Pella earning an hourly wage that had 
 
            increased since time of her first injury.  In order to be 
 
            promoted at Pella, claimant is required to take specific 
 
            classes regarding wood technology and the construction of 
 
            windows.  There are three classes of employment that 
 
            claimant would be eligible for in the event that she took 
 
            these classes and obtained a passing grade.  Claimant has 
 
            shown no inclination to take any of these classes, and has 
 
            not attempted to obtain other employment at a higher rate of 
 
            pay in the plant since the time of her injuries.  Claimant 
 
            has had the same raises that all employees at Pella have 
 
            received in her class.  She also is receiving the basic 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            employment benefit package which includes health insurance, 
 
            profit sharing and other benefits.  Claimant plans to 
 
            continue working at Pella and she has not sought other 
 
            employment since her injury.  Claimant has made no effort to 
 
            change jobs since she was injured.  Additionally, she self 
 
            selected herself out of several employment opportunities 
 
            within the plant because she has made a judgment that she 
 
            could not do the jobs since she believes they do not fall 
 
            within her restrictions.
 
            
 
                 25. When claimant is building muntins, she is required 
 
            to build approximately 75-80 per hour.  Claimant is 
 
            currently producing as many muntins today as she was prior 
 
            to the injury to her shoulder.  Claimant is permitted to 
 
            work at her own pace so that she minimizes her arm pain.  
 
            Claimant does work slower than other employees but her 
 
            supervisors have concluded that this is an acceptable level 
 
            of performance given the restrictions that she is working 
 
            under.  Claimant's other job involves cutting screen 
 
            channels.  This job involves operating a table saw with a 
 
            foot control.  Claimant simply takes a piece of wood and 
 
            makes a cut.  Claimant does her muntin job with her left 
 
            hand and she can also do her cutting job with her left hand.  
 
            Pella has no reason to discontinue employment of claimant in 
 
            the foreseeable future and the company is satisfied with the 
 
            job she is currently doing.
 
            26. As far as claimant's future job security is concerned, 
 
            Pella has had no layoffs in its 66 year history.  
 
            Additionally, Pella has had no strikes and the company has 
 
            followed a general policy of accommodating injured 
 
            employees.  Pella values its employees and works with 
 
            medical doctors and rehabilitation specialists to modify the 
 
            jobs to accommodate injured employees.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  1984 injury.
 
            
 
                 The parties have agreed that claimant suffered a loss 
 
            to permanent loss to a scheduled member when her arm was 
 
            injured in 1984.  The only question to resolve is the extent 
 
            of her entitlement under the Iowa Code.
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different, specific injuries.  Barton v. Nevada Poultry Co., 
 
            110 N.W.2d 660, 663 (Iowa 1961);  Soukup v. Shores Co., 268 
 
            N.W. 598, 601 (Iowa 1936).  Where there is an injury to a 
 
            specific part of claimant's body, such loss shall be 
 
            compensable only to the extent provided by the statute.  
 
            Thus by legislative edict, where the result of an injury 
 
            causes the loss of a foot, or eye etc, such loss, together 
 
            with its ensuing natural results upon the body, is declared 
 
            to be a permanent partial disability and entitled only to 
 
            the prescribed compensation set forth in Iowa Code section 
 
            85.34(2).  A specific scheduled disability is evaluated by 
 
            the functional method.  Martin v. Skelly Oil Co., 252 Iowa 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
            Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).  
 
            
 
                 Expert medical evidence is considered in determining 
 
            the extent of claimant's disability.  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, 907 
 
            (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 
 
            material circumstances.  Bodish v. Fischer, Inc., 133 N.W.2d 
 
            867, 870 (Iowa 1965); Musselman v. Central Telephone Co., 
 
            154 N.W.2d 128, 130 (Iowa 1967).  The Supreme Court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.  Where there 
 
            are conflicting opinions, the treating physician's testimony 
 
            was not required to be given more weight than that of a 
 
            later physician who examined worker in anticipation of a 
 
            workers' compensation claim.  Lithcote Company v. Ballenger, 
 
            471 N.W.2d 64, 66 (Iowa 1991); Rockwell Graphics v. Prince, 
 
            366 N.W.2d 903, 907 (Iowa 1974).
 
            
 
                 In this instance, Dr. Neff and Dr. Grundberg gave 
 
            claimant a rating for her arm.  Dr. Grundberg as the 
 
            treating physician saw claimant at the conclusion of her 
 
            surgery on her arm.  Dr. Neff saw claimant after her 
 
            thoracic outlet surgery.  Dr. Neff had numerous 
 
            opportunities to treat claimant after this surgery.  
 
            Moreover, Dr. Grundberg was not asked to reevaluate claimant 
 
            after her thoracic outlet surgery.  The impairment of rating 
 
            of Dr. Neff was also reaffirmed after claimant had been 
 
            working for a period of time.  For these reasons, Dr. Neff's 
 
            opinion that claimant suffered a 15 percent functional 
 
            impairment to her right upper extremity will be adopted as 
 
            the functional loss in this case.  The loss of use to 
 
            claimant's arm, based on her restrictions and the functional 
 
            impairment rating is 15 percent.
 
            
 
                 II.  1989 Injury.
 
            
 
                 The parties have agreed that the injury suffered on 
 
            March 1, 1989 resulted in a permanent disability.  Where 
 
            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., 
 
            258 N.W.2d 899, 902 (Iowa 1935) as 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 person.  The essence of an earning 
 
            capacity inquiry then, is not how much has the claimant been 
 
            functionally impaired, but whether that impairment, in 
 
            combination with the claimant's age, education, work 
 
            experience, pre and post injury wages, motivation and 
 
            ability to get a job within her restrictions, if any 
 
            restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 In this instance, the claimant urges that her future 
 
            earning capacity must also be factored into the 
 
            determination of her loss of earning capacity resulting from 
 
            her shoulder injury.  The agency case law dictates a 
 
            different result.  It is only the claimant's present not 
 
            future earning capacity which is to be measured in awarding 
 
            industrial disability.  Stewart v. Crouse Cartage, File No. 
 
            738644, Slip Op. (Iowa Ind. Comm'r Arb. Feb. 20, 1987); 
 
            Umphress v. Armstrong Rubber Co. File No. 723184, Slip Op. 
 
            (Iowa Ind. Comm'r App. Aug. 27, 1987).
 
            
 
                 At claimant's age, in her early forties, she is at the 
 
            peak of her earning capacity.  This makes claimant's loss 
 
            more severe than it would be for a younger or older worker.  
 
            Becke v. Turner-Busch, Inc., 34 Biennial Report of the 
 
            Industrial Commissioner 34 (App. 1979); Walton v. B & H Tank 
 
            Corp., II Iowa Industrial Commissioner Report 426 (1981); 
 
            McCoy v. Donaldson Company, Inc., file numbers 782670 & 
 
            805200 (Iowa Ind. Comm'r App. Decision April 28, 1989).  
 
            Claimant has a limited formal education which could limit 
 
            her ability to be retrained.  However, claimant has shown no 
 
            inclination to obtain additional training to seek better 
 
            jobs at Pella or otherwise.  Claimant has a functional 
 
            impairment rating for her shoulder which ranges between one 
 
            and two percent.  All of claimant's doctors have placed 
 
            restrictions on claimant in connection with her shoulder.  
 
            These restrictions prevent her from returning to the factory 
 
            market for available repetitive jobs.
 
            
 
                 Claimant has not experienced any wage loss however.  
 
            Pella is to be commended for accommodating claimant and 
 
            working with her to keep her fully employed.  Claimant is 
 
            still doing factory work, though she is not doing one job 
 
            all day.  Finally, the last report from Dr. Neff indicates 
 
            that claimant has experienced substantial improvement in her 
 
            shoulder.  She had full range of motion in her right 
 
            shoulder and no crepitation in the gleno-humeral joint.  She 
 
            had negative Phelan's and Tinel's at the wrist and elbow.  
 
            Her EMG studies were normal.  
 
            
 
                 Based upon the foregoing factors, all of the factors 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            eight percent industrial disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Pella and Employers Mutual shall pay to claimant 
 
            permanent partial disability benefits in the amount of 
 
            fifteen percent (15%) of two hundred fifty (250) weeks for 
 
            an injury to the right arm.  Payment shall commence on March 
 
            23, 1988.  As these benefits have accrued, they shall be 
 
            paid in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30 (1991).
 
            
 
                 2.  Pella and Employers Mutual shall pay to claimant 
 
            permanent partial disability benefits for the injury to 
 
            claimant's shoulder in the amount of eight (8%) with payment 
 
            commencing on March 1, 1990.  As these benefits have 
 
            accrued, they shall be paid in a lump sum together with 
 
            statutory interest thereon pursuant to Iowa Code section 
 
            85.30 (1991).
 
            
 
                 3.  Pella and Employers Mutual shall have a credit for 
 
            all amounts previously paid against any amounts owed.  
 
            
 
                 4.  The costs of this action shall be assessed to Pella 
 
            and Employers Mutual pursuant to rule 343 IAC 4.33.
 
            
 
                 5.  Pella and Employers Mutual shall file claim 
 
            activity reports as required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Arthur C Hedberg Jr
 
            Attorney at Law
 
            840 Fifth Avenue
 
            Des Moines Iowa 50309-1398
 
            
 
            Mr D Brian Scieszinski
 
            Mr Cecil L Goettsch
 
            Attorneys at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed March 17, 1992
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ARLENE HEATON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 786195
 
                                          :                 954386
 
            PELLA ROLSCREEN COMPANY,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant's loss of use of her arm in File No. 786195 found 
 
            to be 15 percent based on functional impairment of arm.
 
            
 
            5-1803
 
            Claimant, 41-year-old factory worker, with an 11th grade 
 
            education, and a 0-2 percent functional impairment rating 
 
            and lifting restrictions for injury to her shoulder awarded 
 
            8 percent industrial disability where claimant had returned 
 
            to modified factory job with an increase in wages.
 
            
 
 
         
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
             
 
             
 
        ROLLAND L. ALLEN,
 
        
 
            Claimant,                              File No. 786303
 
        
 
             vs.                                          A P P E A L
 
        
 
        HYMAN FREIGHTWAYS,                          D E C I S I O N
 
        
 
            Employer,                                 F I L E D
 
        
 
        and                                          JULY 27, 1989
 
             
 
        TRANSPORT INSURANCE COMPANY,              INDUSTRIAL SERVICES
 
        
 
             Insurance Carrier,
 
            Defendants
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             Claimant appeals from an arbitration decision awarding 
 
             claimant permanent partial disability benefits as a result of an 
 
             alleged injury sustained on December 3, 1984.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration decision and joint exhibits 1 through 15. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
             Claimant states the following issue on appeal: "Has the 
 
             claimant suffered an industrial disability beyond the 15 per cent 
 
             [sic] found by the deputy industrial commissioner?"
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision adequately and accurately reflects 
 
             the pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
             The citations of law in the arbitration decision are 
 
             appropriate to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
             The analysis of the evidence in conjunction with the law is 
 
             adopted.
 
        
 
            On appeal claimant argues that the limitations placed on him 
 
        as a result of his injury would prohibit him from gaining a 
 
        number of positions for which he is otherwise suited, if he were 
 
        terminated or his present employment became otherwise 
 
        unavailable. In effect, claimant is attempting to have the 
 
        undersigned base an award on possible future developments of 
 
        claimant's present condition. However, only claimant's present 
 
        disability can form the basis of an award of benefits. Basing an 
 
        award on possible developments of claimant's condition would be 
 
        engaging in mere speculation. Should claimant's physical 
 
        condition change or the circumstances surrounding his employment 
 

 
        
 
 
 
 
 
        change he has the ability to file a review-reopening provided he 
 
        meets the statutory requirements.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant was a 57 year old truck driver at the time of 
 
             the arbitration hearing.
 
        
 
            2. As a result of the injury that claimant sustained on 
 
        December 3, 1984, he has a 15 percent permanent impairment of the 
 
        body as a whole, due to the condition of his shoulder.
 
        
 
            3. Claimant is prohibited from working with his right hand 
 
        overhead. He is also prohibited from engaging in strenuous use 
 
        of the right arm in activities such as lifting, pushing and 
 
        pulling.
 
        
 
            4. Claimant is unable to perform the work of a city 
 
        delivery truck driver, but has been able to continue employment 
 
        as an over-the-road truck driver.
 
        
 
            5. Claimant has sustained a 15 percent loss of earning 
 
        capacity as a result of the permanent effects of the injury he 
 
        sustained on December 3, 1984.
 
        
 
            6. Claimant did not suffer any loss of actual earning other 
 
        than the earnings lost during the period of recuperation from the 
 
        injury of December 3, 1984.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Claimant has a 15 percent permanent partial disability of 
 
             the body as a whole which entitles him to receive 75 weeks of 
 
             compensation under the provisions of Iowa Code section 
 
             85.34(2)(u).
 
        
 
            Claimant has been previously paid 75 weeks of compensation 
 
        for permanent partial disability and he has been fully paid all 
 
        compensation due or payable to him as a result of the December 3, 
 
        1984 injury.
 
        
 
             WHEREFORE, the decision of the deputy is affirmed.
 
             
 
                                      ORDER
 
             
 
             THEREFORE, it is ordered:
 
             
 
             That claimant take nothing from this proceeding.
 
             
 
             That the costs of this action are assessed against claimant 
 
             pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
            That defendants file a claim activity report as requested by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1.
 
        
 
                  Signed and filed this 27th day of July, 1989.
 
                  
 
                  
 
                  
 
                  
 
                  
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 

 
        
 
 
 
 
 
        
 
        Mr. Thomas R. Isaac
 
        Attorney at Law
 
        3213 East 14th St.
 
        Des Moines, Iowa 50316
 
        
 
        Mr. Cecil L. Goettsch
 
        Attorney at Law
 
        1100 Des Moines Bldg.
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROLLAND L. ALLEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 786303
 
         HYMAN FREIGHTWAYS,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         TRANSPORT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Rolland L. 
 
         Allen against Hyman Freightways, Inc., his employer, and 
 
         Transport Insurance Company, the employer's insurance carrier.
 
         
 
              The case was heard and fully submitted at Des Moines, Iowa 
 
         on November 17, 1988.  The record in this proceeding consists of 
 
         joint exhibits 1 through 15, testimony from Rolland L. Allen and 
 
         testimony from Joseph Chavez.
 
         
 
              Claimant seeks compensation for additional permanent partial 
 
         disability resulting from an injury which occurred on December 3, 
 
         1984.  The only issue in the case is determination of permanent 
 
         partial disability.
 
         
 
                               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.
 
         
 
              Rolland L. Allen is a 57-year-old truck driver who has been 
 
         employed by Hyman Freightways, Inc. since 1972.  Allen injured 
 
         his right shoulder when he slipped and fell on ice at work on 
 
         December 3, 1984.  He was off work for approximately thirteen 
 
         months during which time he had rotator cuff surgery performed by 
 
         Scott B. Neff, D.O.  The surgery performed was a repair of 
 
         claimant's right rotator cuff, acromioplasty and resection of the 
 
         coracoacromial ligament and resection of the lateral clavicular 
 
         osteophyte for decompression of the subacromial space (exhibit 
 
         4).  Dr. Neff has given claimant permanent work restrictions 
 
         which prohibit him from working overhead and which prohibit him 
 
         from doing heavy lifting, pushing and pulling using his right 
 
         arm.  Dr. Neff assigned a fifteen percent permanent impairment 
 
         rating (exhibit 12).
 

 
         
 
              At the time of injury, claimant was working as a city 
 
         driver.  A city driver performs frequent loading, unloading and 
 
         handling of freight.  It requires handling freight overhead and 
 
         handling freight which weighs more than 50 pounds.  The job of 
 
         a city driver involves climbing in and out of the trailer as 
 
         often as 20 or 30 times per day.  Claimant testified that he 
 
         has difficulty climbing in and out of a trailer since his use 
 
         of his right arm is limited.  Claimant stated that he cannot 
 
         handle overhead work.  Ever since he resumed employment 
 
         following recuperation from this injury, the claimant has bid 
 
         and held an over-the-road run to Chicago where he does not have 
 
         to load and unload.  Claimant stated that some other 
 
         over-the-road runs do require handling of freight.
 
         
 
              Allen is currently number six on the seniority list of 
 
         fifteen drivers.  Routes are determined by bidding annually.  
 
         Allen has been driving over-the-road since shortly after he 
 
         resumed employment following recuperation from his injury.  
 
         Claimant's annual earnings, as shown by exhibit 1, are as 
 
         follows:
 
         
 
              1983             $39,461.30
 
              1984             $36,742.43
 
              1985             $ 3,033.33
 
              1986.            $40,219.40
 
              1987             $46,567.61
 
              1988 (projected) $52,080.00
 
         
 
              Claimant testified that he plans to stay in the freight 
 
         industry and to remain employed by Hyman Freightways, Inc.  He 
 
         has not sought other employment.  Claimant stated that his 
 
         current bid job and other work with Hyman Freightways is not 
 
         guaranteed to endure indefinitely.  Claimant testified that he 
 
         performs extra work in addition to his regular run in order to 
 
         earn additional wages.
 
         
 
              Joseph Chavez, the safety director for Hyman Freightways, 
 
         Inc., testified that over-the-road drivers generally earn a 
 
         larger income than city drivers.  Chavez stated that Allen is a 
 
         very desirable employee and that claimant will be offered 
 
         continued employment with Hyman Freightways, Inc.  Chavez also 
 

 
         
 
         
 
         
 
         ALLEN V. HYMAN FREIGHTWAYS
 
         PAGE   3
 
         
 
         
 
         stated that claimant's physical restrictions would not prevent 
 
         him from being hired by Hyman at the present tune if he were 
 
         applying for initial employment.  Chavez felt that claimant could 
 
         find employment as an over-the-road truck driver elsewhere if he 
 
         were not employed by Hyman Freightways, Inc.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant's disability is primarily manifested in his ability 
 
         to use his right arm.  The actual situs of the injury, however, 
 
         is his shoulder.  A shoulder is not a scheduled member and it is 
 
         the impairment of the shoulder that is responsible for claimant's 
 
         loss of use of his right arm, rather than some injury or 
 
         abnormality to the arm itself.  Accordingly, the disability 
 
         should be evaluated industrially.  Lauhoff Grain v. McIntosh, 395 
 
         N.W.2d 834 (Iowa 1986); Kellogg v. Shute & Lewis Coal Co., 256 
 
         Iowa 1257, 130 N.W.2d 667 (1964); Alm v. Morris Barick Cattle 
 
         Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              As claimant has an impairment to the body as awhole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         industrial disability' or loss of earning capacity and not a mere 
 
         'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is.a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant's recent work history has been limited to the 
 
         trucking industry.  It is unlikely that his education and other 
 
         work experience would qualify him for any type of work which 
 
         would be as financially rewarding as truck driving.  Allen has 
 
         not been forced to seek a different type of work.  He has 
 

 
         
 
         
 
         
 
         ALLEN V. HYMAN FREIGHTWAYS
 
         PAGE   4
 
         
 
         
 
         remained employed with the same employer.  His pattern of 
 
         earnings seems to have continued with regular increases.  The 
 
         record that has been presented does not demonstrate any loss of 
 
         actual earnings, other than for the earnings lost during the 
 
         period of recuperation when Allen was not working.  Nevertheless, 
 
         Allen does have a significant physical impairment which detracts 
 
         from his desirability as an employee.  He has lost the 
 
         flexibility to move into other types of work.  When all the 
 
         applicable factors of industrial disability are considered, it is 
 
         determined that Rolland L. Allen has sustained a 15% permanent 
 
         partial disability of the body as a whole as a result of the 
 
         injury that occurred on December 3, 1984.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Rolland L. Allen and Joseph Chavez are fully credible 
 
         witnesses.
 
         
 
              2.  As a result of the injury that Allen sustained on 
 
         December 3, 1984, he has a permanent 15% impairment of the body 
 
         as a whole, due to the condition of his shoulder.  He is 
 
         prohibited from working with his right band overhead.  He is also 
 
         prohibited from engaging in strenuous use of the right arm in 
 
         activities such as lifting, pushing and pulling.
 
         
 
              3.  Allen is unable to perform the work of a city delivery 
 
         truck driver, but has been able to continue employment as an 
 
         over-the-road truck driver.
 
         
 
              4.  Allen has sustained a 15% loss of his earning capacity 
 
         as a result of the permanent effects of the injury he sustained 
 
         on December 3, 1984.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Rolland L. Allen has a 15% permanent partial disability 
 
         of the body as a whole which entitles him to receive 75 weeks of 
 
         compensation under the provisions of Code section 85.34(2)(u).
 
         
 
              3.  Claimant has been previously paid 75 weeks of 
 
         compensation for permanent partial disability and he has been 
 
         fully paid all compensation due or payable to him as a result of 
 
         the December 3, 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 
 

 
         
 
         
 
         
 
         ALLEN V. HYMAN FREIGHTWAYS
 
         PAGE   5
 
         
 
         
 
         Industrial Services Rule 343-3.
 
         
 
              Signed and filed this 28th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas R. Isaac
 
         Attorney at Law
 
         3213 East 14th Street
 
         Des Moines, Iowa 50316
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa 50309
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1803, 1803.1
 
                                                  Filed November 28, 1988
 
                                                  MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROLLAND L. ALLEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No.  786303
 
         
 
         HYMAN FREIGHTWAYS,
 
                                                A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                   D E C I S I 0 N
 
         
 
         and
 
         
 
         TRANSPORT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803, 1803.1
 
         
 
              Injury to claimant's right shoulder for which rotator cuff 
 
         and other surgery was performed was held to be an injury to the 
 
         body as a whole, not to the scheduled member of an arm, even 
 
         though the disability was primarily manifested in the claimant's 
 
         lack of ability to use the arm.
 
         
 
              Where climant was retained in his same employment without 
 
         any showing that his rate of earnings had been reduced as a 
 
         result of the permanent effects of the injury, claimant was held 
 
         to have sustained a 15% permanent partial disability.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JON KERNS,
 
        
 
            Claimant                    File No. 786482
 
        
 
        vs.                                 A P P E A L 
 
        
 
        IBP, INC.,                        D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision awarding claimant 
 
        benefits based upon ten percent permanent partial disability to 
 
        the left hand. The deputy taxed the costs of the arbitration 
 
        proceeding to claimant.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 11. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issues on-appeal: "I. Was an award 
 
        of 10% P.P.D. inadequate for the left hand since it was the 
 
        dominant hand of claimant? II. Did the deputy abuse his 
 
        discretion in awarding costs to a losing defendant and against a 
 
        prevailing claimant?"
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Iowa Code section 86.40 provides: "All costs incurred in the 
 
        hearing before the commissioner shall be taxed in the discretion 
 
        of the commissioner."
 
        
 
        Division of Industrial Services Rule 343-4.33 was intended to 
 
        implement section 86.40 and provides:
 
        
 
        Costs taxed by the industrial commissioner or a deputy 
 
        commissioner shall be (l) attendance of a
 
        
 
        KERNS v. IBP, INC.
 
        Page 2
 
        
 
        
 
        certified shorthand reporter or presence of mechanical means at 
 
        hearings and evidential depositions, (2) transcription costs when 
 
        appropriate, (3) costs of service of the original notice and 
 
        subpoenas, (4) witness fees and expenses as provided by Iowa Code 
 
        sections 622.69 and 622.72, (5) the costs of doctors' and 
 
        practitioners' deposition testimony, provided that said costs do 
 

 
        
 
 
 
 
 
        not exceed the amounts provided by Iowa Code section 622.69 and 
 
        622.72, (6) the reasonable costs of obtaining no more than two 
 
        doctors' or practitioners' reports, (7) filing fees when 
 
        appropriate. Costs of service of notice and subpoenas shall be 
 
        paid initially to the serving person or agency by the party 
 
        utilizing the service. Expenses and fees of witnesses or of 
 
        obtaining doctors' or practitioners' reports initially shall be 
 
        paid to the witnesses, doctors or practitioners by the party on 
 
        whose behalf the witness is called or by whom the report is 
 
        requested. Witness fees shall be paid in accordance with Iowa 
 
        Code section 622.74. Proof of payment of any cost shall be filed 
 
        with the industrial commissioner before it is taxed. The party 
 
        initially paying the expense shall be reimbursed by the party 
 
        taxed with the cost. If the expense is unpaid, it shall be paid 
 
        by the party taxed with the cost. Costs are to be assessed at the 
 
        discretion of the deputy commissioner or industrial commissioner 
 
        hearing the case unless otherwise required by the rules of civil 
 
        procedure governing discovery.
 
        
 
        This rule is intended to implement Iowa Code section 86.40 and 
 
        1988 Iowa Acts, House File 2444.
 
        
 
                                      ANALYSIS
 
        
 
        The deputy's analysis of the evidence concerning the extent of 
 
        claimant's disability to the left hand and the law is adopted.
 
        
 
        The other issue claimant presents is whether the deputy abused 
 
        his discretion in assessing costs to claimant. In his brief 
 
        claimant cites Iowa Code section 625.1 and Eller v. Needham, 247 
 
        Iowa 565, 73 N.W.2d 31 (1956), for the proposition that costs 
 
        must be taxed against the losing party, this statute and 
 
        precedent is not applicable to this agency. See section 86.40. 
 
        Therefore, consideration of this issue will be limited to whether 
 
        the deputy abused his discretion.
 
        
 
        In the conclusion of his brief claimant states:
 
        
 
        But also importantly, the Industrial Commissioner should re-think 
 
        an apparent recent change in policy
 
        
 
        KERNS V. IBP, INC.
 
        Page 3
 
        
 
        
 
        of the Industrial Commissioner in assessing costs to claimant, 
 
        often in close cases where the claimant is apparently destitute.
 
        
 
        This counsel has been serving workers' compensation clients for 
 
        over 40 years and it has only been in the last year or two that 
 
        insensitive deputies have been assessing costs to obviously 
 
        indigent claimant's simply because of company doctors who 
 
        routinely make it difficult to establish burden of proof for 
 
        damages for often obvious industrial accidents.
 
        
 
        There has been no recent change in policy of the agency regarding 
 
        assessing of costs. Many times, even though a defendant wins a 
 
        case, they are assessed costs. Counsel should inform their 
 
        respective clients that there may be costs involved with bringing 
 
        or defending a claim and then informed decisions on bringing an 
 
        action and defending an action need to be made.
 
        
 
        Deputies are not insensitive to workers who are destitute but are 
 
        sensitive to all parties to an action. Some cases should not be 
 
        defended but settled. Some actions should not be brought. In 
 
        other cases the actions of an attorney has been the factor which 
 

 
        
 
 
 
 
 
        greatly increased the costs of the proceeding. The deputy must 
 
        consider all the variables in making his determination on who 
 
        should pay such costs.
 
        
 
        Review of the record reveals no evidence which suggests that the 
 
        deputy abused his discretion in assessing costs to claimant. 
 
        Therefore, the deputy's assessment of the costs of the 
 
        arbitration hearing will be adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant sustained an injury to his left hand arising out of 
 
        and in the course of his employment on February 4, 1985.
 
        
 
        2. As a result of the work injury claimant suffers a ten percent 
 
        permanent impairment to his left hand.
 
        
 
        3. Claimant's healing period ended on July 16, 1985.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has established that he is entitled to permanent partial 
 
        disability benefits based upon a 10 percent permanent
 
        impairment to his left hand.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
        KERNS v. IBP, INC.
 
        Page 4
 
        
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay claimant nineteen (19) weeks of permanent 
 
        partial disability benefits commencing on July 17, 1985 at the 
 
        rate of one hundred seventy-four and 81/100 dollars ($174.81) per 
 
        week.
 
        
 
        That defendant pay accrued amounts in lump sum together with 
 
        interest pursuant to Iowa Code section 85.30.
 
        
 
        That defendant be given credit for benefits previously paid to 
 
        claimant.
 
        
 
        That claimant pay costs of the arbitration hearing and this 
 
        appeal pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendant shall file activity reports as requested by this 
 
        agency pursuant to Division of Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 11th day of August, 1988.
 
        
 
        
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         JON KERNS,
 
         
 
              Claimant,
 
                                                 File No. 786482
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         IOWA BEEF PROCESSORS, INC.,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jon Kerns, 
 
         claimant, against Iowa Beef Processors, Inc. (IBP), self-insured 
 
         employer, for benefits as a result of an alleged injury on 
 
         February 4, 1985.  A hearing was held in Storm Lake, Iowa on 
 
         February 5, 1987 and the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant, and joint 
 
         exhibits 1 through 11.  Neither party filed a brief.
 
         
 
              The parties stipulated that claimant's rate of weekly 
 
         compensation is $174.81; that claimant was off work from February 
 
         5, 1985 through May 1, 1985, and from June 27, 1985 through July 
 
         16, 1985; that permanency benefits, if awarded, would commence on 
 
         July 17, 1985; that permanent partial disability benefits have 
 
         been paid through October 31, 1985; that claimant's injury is 
 
         scheduled; that claimant's injury of February 4, 1985 arose out 
 
         of and in the course of his employment with IBP; and that the 
 
         intoxication defense of Iowa Code section 85.16 was being waived 
 
         by defendant.  The first report of injury in this case states 
 
         that the injury occurred on February 4, 1985; however, claimant's 
 
         petition alleges an injury date of February 6, 1985.  The parties 
 
         stipulated that claimant started missing work on February 5, 
 
         1985.
 
         
 
                                     ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal connection between claimant's 
 
         injury of February 4, 1985 and his asserted disability; and
 
         
 
              2)  Nature and extent of disability.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 25 years of age and graduated 
 
         from high school in 1980.  He started working for IBP in either 
 
         1983 or 1984 at its Storm Lake plant.  He described a variety of 
 
         jobs that he performed at the plant such as cutting picnics and 
 
         cleaning toilets.  He then described the injury that he sustained 
 

 
         at IBP on February 4, 1985 while running a saw.  Claimant is 
 
         left-handed and he cut his left hand on February 4, 1985.  He 
 
         stated that he cut bones and tendons in his left hand and as a 
 
         result was taken to a hospital in Storm Lake, and then was 
 
         eventually taken to a hospital in Sioux City, Iowa.  John J. 
 
         Dougherty, M.D., performed surgery on claimant's left hand and he 
 
         was off work for a period of time after his injury and resulting 
 
         surgery.  Dr. Dougherty eventually sent claimant back for "One 
 
         handed duty."  Claimant then showed the hearing deputy his left 
 
         hand.  Claimant then described some exercises he has done with 
 
         his hand.
 
         
 
              Claimant described the problems he is currently having with 
 
         his left hand and complained of lack of flexibility in that he 
 
         cannot make a fist with his left hand.  He stated that he stopped 
 
         going to rehabilitation because IBP stopped paying for physical 
 
         therapy or rehabilitation and he could not afford to pay for this 
 
         treatment out of his own pocket.
 
         
 
              On cross-examination, claimant stated that neither Horst 
 
         Blume, M.D., nor R. H. Miller, M.D., treated him.  Dr. Dougherty 
 
         treated claimant for his left hand injury on quite a few 
 
         occasions.  Dr. Dougherty has told claimant that his left hand is 
 
         not going to get any better at this point.
 
         
 
              Exhibit 2, pages 3-4 (dated February 4, 1985), is a medical 
 
         record from Buena Vista County Hospital, authored by W. E. Erps, 
 
         M.D., that reads in part:
 
         
 
                   This 23 year old IBP worked [sic] was cut on the 
 
              dorsal aspect of the left hand with a meat saw.  He has 
 
              an avulsion type laceration across the entire dorsal 
 
              aspect of the hand severing all the tendons in that 
 
              region plus several of the metacarpals.  X-rays are 
 
              pending.  The degree of injury is severe and will 
 
              require repair in the operating room.
 
         
 
         
 
              Extremities:  All normal except for  the  dorsal
 
                            aspect of the left hand with the severe 
 
                            laceration as mentioned above.  This involves 
 
                            all, the dorsal tendons just proximal to the 
 
                            MP joints and several. metacarpals are 
 
                            severed.  Fingers are held in flexion.
 
         
 
         
 
              DIAGNOSIS:  Severe [sic] avulsion saw injury of
 
                          dorsal aspect of left hand with severed 
 
                          tendons and metacarpal trauma multiple
 
         
 
              Exhibit 3, page 6 (dated February 4, 1985), is a medical 
 
         record from Marian Health Center of Sioux City, Iowa that reads 
 
         in part:
 
         
 
              FINAL DIAGNOSIS (including complications)
 
         
 
                   Previous severe injury to the left upper extremity 
 
                   with multiple tendon injuries, metacrapal 
 
                   fractures, destruction of the MP joint of the 
 
                   little finger with marked loss of motion of the MP 
 
                   joints of the little, long and ring fingers.
 
         
 

 
         
 
         
 
         
 
         KERNS V. IOWA BEEF PROCESSORS, INC.
 
         Page   3
 
         
 
         
 
              OPERATIVE PROCEDURES:
 
         
 
                   Tenolysis on the dorsum of the hand of all of the 
 
                   extensor tendons; partial capsulectomy of the MP 
 
                   joints of the long, rign, [sic] and little 
 
                   fingers; resection of a portion of the collateral 
 
                   ligaments bilaterally of these fingers; closure 
 
                   with a splint.
 
         
 
              Exhibit 3, page 8 (dated July 14, 1985), is authored by J.J. 
 
         Dougherty, M.D., and reads in part:
 
         
 
              The above patient was admitted to the hospital on 
 
              6-27-85.  He had previously had a severe injury to the 
 
              dorsum of his left hand, saw cut, with severe tendon 
 
              and joint injuries, metacarpal fractures and injury to 
 
              the interossei.  At this point in time, he seems to be 
 
              getting along better; however, we just can't get any 
 
              significant motion out of the MP joints.  Now he does 
 
              not have much of a joint at the 5th finger.  The 
 
              thought had been considered about putting a prosthesis 
 
              in his fifth finger, but I did not really feel this was 
 
              indicated at this point in time.
 
         
 
              He was taken to surgery and a tenolysis was carried out 
 
              of the extensor tendons and a capsulotomy of the long, 
 
              ring, and little fingers with a resection of a portion 
 
              of the collateral ligaments bilaterally of these 
 
              fingers.
 
         
 
              FINAL DIAGNOSIS:
 
              Previous severe injury to the upper left extremity with 
 
              multiple tendon injuries, metacarpal fractures, 
 
              destruction of the MP joint of the little finger with 
 
              marked loss of motion of the MP joints of little, long 
 
              and ring fingers.
 
         
 
              Prognosis remains guarded here.  It is still 
 
              conceivable he might be a candidate for a prosthesis of 
 
              the MP joint of the little finger, but did not as I 
 
              mentioned above feel that it was indicated at this 
 
              point in time.
 
         
 
              Exhibit 3, page 10, reads in part regarding the surgery of 
 
         June 28, 1985:
 
         
 
         
 
              PREOPERATIVE DIAGNOSIS:
 
         
 
                                       Previous severe mutilative 
 
                                       type of injury to the left 
 
                                       upper extremity with an open 
 
                                       saw cut, division of all 
 
                                       tendons extending into, and 
 
                                       loss of portion, of the MP 
 
                                       joint of the little finger; 
 
                                       loss of some of the 
 
                                       interosseous muscles and 
 
                                       tendons, now with marked 
 

 
         
 
         
 
         
 
         KERNS V. IOWA BEEF PROCESSORS, INC.
 
         Page   4
 
         
 
         
 
                                       extension contracture of the 
 
                                       MP joints of the long, ring, 
 
                                       and little fingers, and some 
 
                                       of the index finger.
 
         
 
              POSTOPERATIVE DIAGNOSIS:  Same
 
         
 
              NAME OF OPERATION:
 
         
 
                                 Tenolysis on the dorsum of the hand 
 
                                 of all of the extensor tendons; 
 
                                 partial capsulectomy of the MP 
 
                                 joints of the long, ring, and little 
 
                                 fingers; resection of a portion of 
 
                                 the collateral ligaments bilaterally 
 
                                 of these fingers; closure with a 
 
                                 splint.
 
         
 
              Exhibit 3, page 89 (dated February 4, 1985), is an x-ray 
 
         report authored by T. A. Ware, M.D., that reads:
 
         
 
              Examination of the left hand taken portable 
 
              demonstrates a fracture of the midshaft of the 3rd 
 
              metacarpal, a fracture of the distal shaft of the 4th 
 
              metacarpal, and a fracture of the proximal portion of 
 
              the proximal phalanx of the little finger with a 
 
              separated fragment measuring from 6 mm.
 
         
 
              Re-examination of the left hand demonstrates internal 
 
              fixation through the 3rd & 4th metacarpals and through 
 
              the proximal portion of the proximal phalanx of the 
 
              little finger with segments maintained in good position 
 
              and alignment.
 
         
 
              Exhibit 4, page 1 (dated February 14, 1986), is authored by 
 
         Dr. Dougherty and reads in part:
 
         
 
              With regard to permanent partial disability, I think 
 
              his main disability is in reference to his MP joints.  
 
              I have felt he's probably reached his maximum 
 
              improvement and that probably he's entitled to 8% of 
 
              his hand or possibly slightly more, maybe 10%.
 
         
 
            Exhibit 5, page 1 (dated April 2, 1986), is authored by R. H. 
 
         Miller, M.D., and reads in part:
 
         
 
              According to the AMA Guide for permanent impairment of 
 
              the extremities, limitation of joint motion at the 
 
              index finger gives him 1.8% disability of the finger 
 
              and 5% of the hand.  The middle finger gives him 18% 
 
              disability of the finger, 4% of the entire hand.  
 
              Limitation of motion at the ring finger gives him 24% 
 
              disability for the finger and 3% for the entire hand 
 
              and for the fifth finger, limitation gives him 37% 
 
              disability for the finger and 2% for the hand.  This 
 
              adds up to 14% disability of the hand on his limitation 
 
              of motion only, does not take into consideration the 
 
              loss of sensation in the ulnar nerve distribution.  In 
 
              my opinion, this translates then into between 16 and 
 

 
         
 
         
 
         
 
         KERNS V. IOWA BEEF PROCESSORS, INC.
 
         Page   5
 
         
 
         
 
              18% disability of his left upper extremity, again 
 
              important to point out this is his dominant extremity.
 
         
 
              Exhibit 9 is the deposition of claimant taken on November 8, 
 
         1985.  On pages 8-9, he stated that he has had carpal tunnel 
 
         surgery on his left hand or wrist and received workers' 
 
         compensation benefits as a result.  Also, the following exchange 
 
         is set out on page 35:
 
         
 
              Q.  You apparently feel that you can use your hand in 
 
              the types of work you've been looking for, would that 
 
              be true?
 
         
 
              A.  I hope so.
 
         
 
              Exhibit 10 is the deposition of Dr. Miller taken on November 
 
         12, 1986.  On page 5, he gives claimant a five percent permanent 
 
         partial impairment rating for his left hand.  On page 9, there is 
 
         a further rating discussion and on page 10 Dr. Miller corrected a 
 
         percentage figure.
 
         
 
              Exhibit 11 is the deposition of Dr. Dougherty taken on 
 
         December 10, 1986.  On page 5, Dr. Dougherty stated that he saw 
 
         claimant on April 11, 1984 because of a carpal tunnel problem.  
 
         On page 8, he restated his 8-10% rating for claimant's left hand, 
 
         but admitted on page 10 that he did not take claimant's 
 
         left-handedness into account.  On page 15, Dr. Dougherty stated 
 
         that Dr. Blume arrived at a ten percent rating for claimant's 
 
         left hand.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              The causal connection issue overlaps with the nature and 
 
         extent issue in this scheduled member case.  The incident of 
 
         February 4, 1985 did cause some permanent partial impairment.  
 
         The questions that need agency resolution are: 1) what member or 
 
         members were affected by the incident of February 4, 1985, and 2) 
 
         what is the degree of impairment; that is, a percentage of 
 
         impairment for the affected member or members must be 
 
         determined.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated. Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              The disability in this case is limited to claimant's left 
 
         hand.  See William E. Jarrett, Jr. v. Churchill Truck Lines, 
 
         Inc., (Appeal Decision, No. 737598 filed on December 22, 1986) 
 
         (The facts in Jarrett are somewhat similar to the facts in this 
 
         case.) I am persuaded that claimant has a ten percent permanent 
 
         partial impairment or disability to his left hand entitling him 
 
         to 19 weeks of permanent partial disability commencing on July 
 
         17, 1985.  See Iowa Code section 85.34(2)(1).
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant injured his left hand with a saw on February 4, 
 

 
         
 
         
 
         
 
         KERNS V. IOWA BEEF PROCESSORS, INC.
 
         Page   6
 
         
 
         
 
         1985 while working for IBP.
 
         
 
              2.  Claimant's work-related injury caused impairment or 
 
         disability to his left hand only.
 
         
 
              3.  The degree of permanent partial impairment to his left 
 
         hand is ten percent.
 
         
 
              4.  Claimant's stipulated rate is $174.81.
 
         
 
         
 
         
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established entitlement to nineteen (19) weeks 
 
         of permanent partial disability benefits commencing on July 17, 
 
         1985 and defendant is entitled to credit for benefits already 
 
         paid.
 
                                        
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendant pay the weekly disability benefits described 
 
         above.
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendant be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That claimant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Industrial Services Rule 343-3.1(2), formerly Industrial 
 
         Commissioner Rule 500-3.1(2), as requested by the agency.
 
         
 
         
 
                  Signed and filed this 26th day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          T.J. McSWEENEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 

 
         
 
         
 
         
 
         KERNS V. IOWA BEEF PROCESSORS, INC.
 
         Page   7
 
         
 
         
 
         Mr. Barry Moranville
 
         Mr. Harry Dahl
 
         Attorneys at Law
 
         974 73rd St, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1803
 
                                                 Filed 3-26-87
 
                                                 T. J. McSweeney
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         JON KERNS,
 
         
 
              Claimant,
 
                                                 File No. 786482
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         IOWA BEEF PROCESSORS, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1402.40; 1803
 
         
 
              Held in arbitration that claimant sustained scheduled loss 
 
         to his left hand, not his left arm.  Costs were charged to 
 
         claimant.  The only "fighting issue" in the case was not a close 
 
         one.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                                 
 
          
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER  
 
          
 
          
 
          MARK STEFFES,
 
         
 
               Claimant,
 
                                                      File No.786705
 
          VS.
 
         
 
                                                      R E V I E W
 
         DUBUQUE PACKING CO.,
 
                                                      R E 0 P E N I N G
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding styled in review-reopening brought by 
 
         claimant, Mark Steffes, against his employer, Dubuque Packing 
 
         Company, and its insurance carrier, Sentry Insurance Company, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury sustained on January 28, 1985.  This matter 
 
         came on for hearing before.the undersigned deputy industrial 
 
         commissioner in Fort Dodge, Iowa on January 20, 1989.  A first 
 
         report of injury was filed on February 8, 1985.  At hearing, the 
 
         parties stipulated that claimant had been paid six weeks of 
 
         nondesignated benefits at the rate of $240.17.
 
         
 
              Claimant did not comply with the Hearing Assignment Order 
 
         filed October 20, 1988 in that claimant did not exchange witness 
 
         and exhibit lists as ordered therein.  Claimant was therefore 
 
         barred from presenting documentary evidence or testimonial 
 
         evidence other than his own.  Defendants presented neither 
 
         documentary or testimonial evidence.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing order which the parties completed 
 
         at hearing, the parties stipulated that claimant sustained an 
 
         injury on January 28, 1985, which injury.arose out of and in the 
 
         course of his employment.  The parties further stipulated that 
 
         claimant was single and entitled to one exemption.  The parties 
 
         reported the following issues remained for resolution:
 
         
 
              1.   Whether a causal relationship exists between claimant's 
 
         injury and his claimed disability;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement;
 
         
 
         STEFFES V. DUBUQUE PACKING CO.
 
         Page 2
 
         
 
         
 
              3.  Whether claimant is entitled to payment of certain 
 
         medical costs under section 85.27 as causally related to his 
 
         injury, authorized by the employer and as fair and reasonable 
 
         costs; and,
 
         
 
              4.  Claimant's rate of weekly compensation.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant's petition alleges that claimant injured his back 
 
         while lifting beef and that such resulted in permanent partial 
 
         disability to the body as a whole.  The petition alleges that 
 
         claimant has expenses under section 85.27 with Drs.  Flood, Saul, 
 
         Paulus, Woodward and Hansma.
 
         
 
              At hearing, claimant testified that he was injured while 
 
         lugging beef on January 28, 1985 and saw Dr. Flood until May, 
 
         1985 when he was diagnosed.  Claimant expressed his belief that 
 
         he has a Grade I spondylosis.. He stated he had had no problem 
 
         with his back prior to the incident and had missed no work before 
 
         the incident.  Claimant stated that he has had back pain and 
 
         discomfort since the injury.  He expressed his belief that he 
 
         needs to return to the doctors to be rechecked.  Claimant 
 
         characterized his life as a "living mess" since the injury as a 
 
         result of actions of this agency, of his employer, of his former 
 
         counsel, and of defendants' counsel.
 
         
 
              On cross-examination, claimant agreed that he,had injured 
 
         his shoulder in a fight in a bar in March, 1985 and that he had 
 
         subsequently sought medical treatment.  Claimant agreed that he 
 
         had been arrested for assault and subsequently charged with 
 
         driving without a license on December 23, 1986.  Claimant was 
 
         arrested on September 23, 1985 for driving while his license was 
 
         suspended.  Claimant agreed that he lost his license about two 
 
         years ago and then got it back last summer and subsequently lost 
 
         it approximately two weeks ago.  He stated that by "lost" he 
 
         meant that he had lost it in his billfold.  Claimant agreed that 
 
         the fact that he is on a "tightrope" as regards his license would 
 
         affect his ability to get any job.  Claimant agreed that he has 
 
         been terminated from two packing houses, but stated that he was 
 
         twice terminated because the plant had shut down and once 
 
         terminated because he had been late for work.  Claimant denied 
 
         that he had a history of violence.  He agreed that he had been 
 
         involuntarily terminated from the Dubuque Packing Plant following 
 
         an argument with his foreman and that he was subsequently denied 
 
         unemployment compensation benefits.  Claimant's union did not 
 
         grieve his involuntary termination.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has completed 17 hours of college credit.  He 
 
         agreed that his family has a trash hauling business.  He denied 
 
         that he had worked in the trash hauling business, but stated that 
 
         he "has helped his dad out in little ways" in the past three 
 
         years since his father has provided him with a place to live and 
 
         spending money, and has paid his utilities.
 
         
 
         
 
         
 
         STEFFES V. DUBUQUE PACKING CO.
 
         Page 3
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              An injury is the producing cause;.the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 28, 1985 is causally 
 
         related to the disability on which he now bases his claim. Bodish 
 
         v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary. Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection. 
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in. whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant has not shown that his stipulated injury is 
 
         causally connected to any alleged disability.  As it is the 
 
         disability which is the result, it is the disability which is 
 
         compensated.  Therefore, claimant has not shown that he is 
 
         entitled to any additional compensation on account of his alleged 
 
         disability.  Likewise, claimant has not produced any medical 
 
         costs which he states relate to his alleged injury and has not 
 
         shown that any medical costs, if any there be, are causally 
 
         connected to the stipulated injury and therefore are the 
 
         employer's liability under section 85.27. Claimant also produced 
 
         no evidence relative to his claim that the rate of weekly 
 
         compensation is disputed.  As no evidence was produced on that 
 
         matter, it cannot be decided in claimant's favor.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury arising out of and in the
 
         
 
         
 
         
 
         STEFFES V. DUBUQUE PACKING CO.
 
         Page 4
 
         
 
         
 
         course of his employment on January 28, 1985 while lugging beef 
 
         for Dubuque Packing Company.
 
         
 
              No medical evidence in the record supports claimant's claim 
 
         that his injury of January 28, 1985 produced a disability to his 
 
         back.
 
         
 
              No evidence in the record supports claimant's claim that he 
 
         has medical costs related to his work injury and any work-related 
 
         disabling back condition.
 
         
 
              No evidence in the record supports claimant's claim that the 
 
         rate of weekly compensation at which defendants paid six weeks of 
 
         benefits is in error.
 
         
 
              The evidence in the record does not support claimant's claim 
 
         that he is entitled to any additional weekly benefits on account 
 
         of his work injury.
 
         
 
                                CONCLUSIONS.OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established a causal relationship between 
 
         his injury and his claimed disability.
 
         
 
              Claimant has not established entitlement to any additional 
 
         temporary total disability or any permanent partial disability 
 
         benefits.
 
         
 
              Claimant has not established that claimant is entitled to 
 
         payment of pertain medical costs under section 85.27.
 
         
 
              Claimant has not established that the rate of weekly 
 
         compensation at which defendants paid six weeks of benefits is in 
 
         error.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing further from this proceeding.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant pay costs of this proceeding as provided in 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 16th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         HELENJEAN WALLESER
 
                                         DEPUTY,INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         STEFFES V. DUBUQUE PACKING CO.
 
         Page 5
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Mark Steffes
 
         203 North West Street
 
         Carroll, Iowa 51401
 
         REGULAR AND CERTIFIED MAIL
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                   1402
 
                                                 Filed March 16, 1989
 
                                                 HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARK STEFFES,
 
         
 
              Claimant,
 
                                                      File No. 786705
 
         VS.
 
                                                      R E V I E W
 
         DUBUQUE PACKING CO.,
 
                                                      R E 0 P E N I N G
 
         
 
              Employer,
 
                                                      D E C I S I 0 N 
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402
 
         
 
              Claimant, who did not submit witness and exhibits lists as 
 
         required under the hearing assignment order, was barred from 
 
         presenting evidence other than his own testimony.  Claimant 
 
         failed to meet his burden of proof on any issue.