BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         ALLEN MICHAEL DONOVAN,
 
         
 
              Claimant,
 
                                                   File No. 789214
 
         vs.
 
         
 
         IOWA STATE MEN'S REFORMATORY,           A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
                                                       F I L E D
 
         STATE OF IOWA,
 
                                                      JAN 17 1989
 
              Insurance Carrier,
 
              Defendants.                    IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Allen Michael Donovan, against Iowa Men's Reformatory, Employer, 
 
         and State of Iowa, insurance Carrier, to recover benefits under 
 
         the Iowa Workers' Compensation Act as a result of an injury 
 
         sustained on March 29, 1983.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner in Dubuque, 
 
         Iowa, on November 30, 1988.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant and joint exhibits A and B.
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's weekly compensation rate is $180.74; that there 
 
         is an employer-employee relationship; that the injury arose out 
 
         of and in the course of his employment; that the date of injury 
 
         was March 29, 1983; that the medical charges are fair and 
 
         reasonable; that there are no credits involved; that no benefits 
 
         have been paid; and,.agreed as to the taxation of costs.
 
         
 
                                      ISSUES
 
         
 
              The issues remaining in this are:
 
         
 
              l.  Whether there is a causal connection between the:injury 
 
         and claimant's alleged disability;
 
         
 
              2.  The nature and extent of claimant's disability and 
 
         commencement dates; and,
 
         
 
              3.  Whether claimant is entitled to medical benefits.
 
                                                
 
                                                         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant was in an Iowa minimum security facility pursuant 
 
         to a two year sentence in Black Hawk County in connection with 
 
         his conviction for transporting and possession of a firearm by 
 
         convicted felon.  Claimant testified he was sent to this facility 
 
         and was under the supervision of either Iowa conservation 
 
         officers and/or correctional officers during his work while 
 
         serving his sentence.  Claimant was transferred as an inmate to 
 
         work at the Yellow River Forest, a state operated sawmill.  
 
         Claimant testified he had worked less than two weeks at this 
 
         sawmill when an injury occurred on March 29, 1983.  Claimant said 
 
         he was injured when the rotating sawmill and pressure feed 
 
         malfunctioned and propelled a cut board at claimant striking him 
 
         in the right shoulder, chest, mouth, and knocking claimant ten 
 
         feet and leaving him unconscious.
 
         
 
              Claimant was admitted to the University of Iowa Hospitals on 
 
         March 29, 1983 for oral and maxillofacial surgery.  That same day 
 
         the University of Iowa Hospital records show the diagnosis was:
 
         
 
              [R]right mandibular body fracture with alveolar fracture 
 
              contain teeth #27 and 28 and maxillary alveolar fracture 
 
              with avulsed teeth #7,8,9 and 10....
 
         
 
                 ....
 
         
 
              ...Attention was first drawn to the upper arch where avulsed 
 
              teeth #7, 8, 9 and 10 were repositioned in the arch and it 
 
              was found that #7,8 and 9 were completely free of all bony 
 
              attachments and were therefore removed.  Tooth #10 still had 
 
              good buccal and lingual bone attachments and was deamed 
 
              [sic] salvageable.
 
         
 
         (Joint Exhibit A, page 4)
 
         
 
         The records ultimately show that tooth #lO was also removed some 
 
         time thereafter.
 
         
 
              The same medical record further indicates:  ,"The 
 
         prefabricated mandibular lingual splint was the [sic] applied 
 
         with straight .018 gauge wires and the patient was brought into 
 
         anatomic occlusion and found to fit quite well."  Claimant 
 
         testified he was also cut in the right cheek and his gums were 
 
         cut and his whole body and neck hurt from the impact.
 
         
 
              On the day of hearing, claimant's external cheek or jaw 
 
         showed no real visible signs of any injury but testified that 
 
         there still is either a numbness or tingling feeling in his lower 
 
         cheek jaw area.  When he pushes it, it aches into the gum and 
 
         tooth area.  Claimant indicated the doctor told him he had nerve 
 
         damage and would not get any better.
 
         
 
              Claimant said his jaw was wired shut for approximately six 
 
                                                
 
                                                         
 
         and a half weeks plus another two weeks claimant wore a rubber 
 
         device when the jaw was unwired.  Claimant stated that during the 
 
         time the jaw was wired, he had to eat liquid food and did so 
 
         through the space where the four front teeth were missing. 
 
         Claimant testified he was totally incapacitated for eight weeks 
 
         until all the wires were cut.  Claimant testified that there were 
 
         twelve weeks altogether that he was not able to work.  After this 
 
         twelve weeks, claimant said he fully recovered except for the 
 
         nerve damage to which he testified to earlier.
 
         
 
              Claimant testified he received replacement false teeth but 
 
         "did not wear them because they did not fit right."
 
         
 
              Dr. Bernard Sines, D.D.S., wrote on May 18, 1988:
 
         
 
              "While incarcerated at the Medium Security Unit at Mount 
 
              Pleasant Inmate Donovan requested an "upper claspless 
 
              partial."  He received this in September '84 and did not 
 
              return to the dental clinic for any adjustments or 
 
              complaints during the remaining five months of his 
 
              incarceration at MSU.
 
         
 
              When he returned through IMCC at Oakdale two years later we 
 
              asked where his partial was and he stated he threw it away 
 
              because it didn't fit."
 
         
 
              Although a "flipper" is adequate [sic], it is not the ideal 
 
              replacement for missing teeth.  However, I question whether 
 
              or not the treatment of choice would be a 6 or 8-unit fixed 
 
              porcelain bridge.  I suspect the length of the span and the 
 
              curvature ,of the arch might be excessive.  A referral to a 
 
              prosthedontist for an evaluation could answer this.  The 
 
              compromise treatment of choice would be a removable 
 
              maxillary partial denture with a cast framework and 
 
              "clasps."
 
         
 
         (Jt. Ex. A, p. l)
 
         
 
              There were no outstanding medical bills at the time of 
 
         hearing.
 
         
 
                            APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 29, 1983 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).
 
         
 
              There is no question that claimant sustained injuries that 
 
         arose out of and in the course of his employment.  Claimant was 
 
         in a minimum security arrangement working for the state while 
 
                                                
 
                                                         
 
         serving his sentence.  The 12 weeks that it took claimant to 
 
         fully recover were during the time when claimant was still 
 
         serving his sentence.
 
         
 
              Iowa Code section 85.36(10)(d) states:
 
         
 
              If the employee was an inmate as defined in section 85.59, 
 
              the inmate's actual earnings shall be disregarded, and the 
 
              weekly compensation rate shall be as set forth in section 
 
              85.59.
 
         
 
              Iowa Code section 85.59 states, in part, as follows:
 
         
 
              If an inmate is permanently incapacitated by injury in the 
 
              performance of his or her work in connection with the 
 
              maintenance of the institution or in an industry maintained 
 
              therein or while on detail to perform services on a public 
 
              works project, or is permanently or temporarily 
 
              incapacitated in connection with the performance of unpaid 
 
              community service under sections 907.13 and 910.2 or a work 
 
              assignment of value to the state or to the public under 
 
              chapter 232, that inmate shall be awarded only such benefits 
 
              as are provided in section 85.27 and section 85.34, 
 
              subsections 2 and 3.
 
         
 
                                
 
                                                         
 
              It is undisputed that claimant was an inmate.  Therefore 
 
         85.59 is applicable.  There is no outstanding medical expense. 
 
         Claimant made a mistake to which he should be held responsible. 
 
         Claimant threw away his "upper claspless partial" prothesis.  If 
 
         it did not fit as he alleged, then he should have made an 
 
         arrangement with the dentist to make an adjustment.
 
         
 
              Claimant has lost four front teeth on his upper jaw which 
 
         was caused by his injury that arose out of and in the course of 
 
         his employment.  He contends he should have a four tooth 
 
         transplant if he is a medically suitable subject.  Whether he is 
 
         suitable for this type of surgery can only be determined by a 
 
         competent professional dental surgeon.  If he is not a suitable 
 
         subject, claimant wants another prothesis for his missing four 
 
         teeth lost as a result of the March 29,1983 injury.  Claimant was 
 
         temporarily incapacitated by this injury.
 
         
 
              It is not an unreasonable request for an attempt to be made 
 
         to have a four tooth implant.  If this is not medically 
 
         advisable, it is unreasonable to expect the defendants to pay for 
 
         another prothesis device to replace the one claimant threw away.
 
         
 
              If a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              If claimant is entitled to permanent disability payments, 
 
         what type?  There is no scarring of the face, therefore, no 
 
         scheduled loss.  The loss of four front teeth is not a scheduled 
 
         loss.  Any disability is outside a scheduled member.
 
         
 
              There is no evidence of a reduction of claimant's earning 
 
         capacity.  Although the loss of teeth is permanent, there is no 
 
         impairment rating and none seems appropriate.  Impairment is only 
 
         one thing to consider in an industrial disability.
 
         
 
              There is no evidence that claimant is not employable or less 
 
         employable due to his injuries incurred on March 29, 1983. 
 
         Claimant testified he fully recovered after 12 weeks from the 
 
         injury while he was still incarcerated, except for the four teeth 
 
         missing and an ache he has at times in his cheek and gum.  To be 
 
         an industrial disability, there must be a showing of a reduction 
 
         of earning capacity.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant incurred an injury arising out of and in the 
 
         course of his employment on March 29, 1983, when he was hit by a 
 
         board coming out of a saw, hitting him in the cheek, jaw and 
 
                                                
 
                                                         
 
         teeth, resulting in certain injuries including the loss of four 
 
         front teeth on his upper jaw.
 
         
 
              2.  There were no unpaid medical benefits at time of 
 
         hearing.
 
         
 
              3.  There had been no benefits paid at the time of the 
 
         hearing other than payment of all medical and dental bills that 
 
         were incurred by claimant.
 
         
 
              4.  Claimant is still missing four front teeth on his upper 
 
         jaw.
 
         
 
              5.  Claimant threw away an "upper claspless partial" 
 
         prothesis that was provided by the defendants at no cost to the 
 
         claimant.
 
         
 
              6.  Claimant has no injury to a scheduled member.
 
         
 
              7.  Claimant has no permanent impairment and no reduction in 
 
         his earning capacity as a result of his injury on March 29, 
 
         1983.
 
         
 
              8.  Claimant was temporarily incapacitated in connection 
 
         with a work assignment of value to the state or to the public 
 
         under chapter 232, Code of Iowa.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant is not entitled to healing period, temporary total 
 
         disability nor permanent partial disability benefits.
 
         
 
              Claimant is not entitled to new replacement of "upper 
 
         claspless partial" prothesis device.
 
         
 
              Claimant is entitled to an oral dental surgeon exam to 
 
         determine claimant's suitability for a four tooth transplant, and 
 
         if suitable to have the surgery transplant provided for him.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay for the cost of an evaluation by an 
 
         oral dental surgeon as to whether claimant is a suitable 
 
         candidate for tooth implant.
 
         
 
              If claimant is a suitable subject, defendants shall pay for 
 
         implantation of four teeth on the upper jaw of claimant.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-43.33.
 
         
 
                                                
 
                                                         
 
              Defendants shall file an activity report upon payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services rule 343-3.1.
 
         
 
              Signed and filed this 17th day January, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J.O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Wallace D. Parrish
 
         Attorney at Law
 
         604 Mulberry St, Ste 201
 
         P.O. Box 85
 
         Waterloo, IA  50704
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover Building
 
         Des Moines, IA  50319
 
         
                            2501; 2502; 2503
 
                                       2504; 2500; 1108.50
 
                                       2700
 
                                       Filed January 17, 1989
 
                                       Bernard J. O'Malley
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ALLEN MICHAEL DONOVAN,
 
        
 
            Claimant,
 
                                               File No. 789214
 
        vs.
 
        
 
        IOWA STATE MEN'S REFORMATORY,        A R B I T R A T I O N
 
        
 
            Employer,                         D E C I S I O N
 
        
 
        and
 
        
 
        STATE OF IOWA,
 
        
 
             Insurance Carrier,
 
             Defendants
 
             
 
             
 
        2501; 2502; 2503; 2504; 2500; 1108.50; 2700
 
        
 
             Claimant was an inmate at Iowa State Men's Reformatory when 
 
             he was assigned to work at a state sawmill under correction 
 
             officers' supervision. While working, a piece of cut wood shot 
 
             out of saw machine, knocking out claimant's four front teeth.
 
        
 
            Only benefits awarded to claimant were entitlement to exam 
 
        by oral surgeon to determine suitability of tooth implant and if 
 
        medically advisable. Defendants to pay the cost of tooth 
 
        implant.
 
        
 
            No denture benefit allowed as claimant threw away a prior 
 
        denture provided for him.
 
        
 
            Iowa Code sections 85.36(10)(d) and 85.59 limits benefits 
 
        when inmate is involved, i.e., (l) actual earnings are 
 
        disregarded; (2) permanent or temporary incapacitation must be 
 
        found; and (3) only benefits under 85.27 and 85.34(2)(3) can be 
 
        awarded.
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RUSSELL J. KEENEY,                      File  Nos. 789227/679931
 
                                                            789226
 
              Claimant,
 
                                                   A R B I T R A T I O N
 
         VS.
 
                                                           A N D
 
          WILSON FOODS CORPORATION,
 
                                                        R E V I E W -
 
              Employer,                              R E 0 P E N I N G
 
              Self-Insured,
 
              Defendant.                              D E C I S I 0 N
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding for the recovery of further benefits as 
 
         a result of injuries claimant received while working for 
 
         defendant on August 26, 1981, March 16, 1982 and February 7, 
 
         1984.  The cases came on for hearing on January 30, 1987.  Other 
 
         than allowing the parties to file briefs the matter was 
 
         considered fully submitted upon completion of the hearing.
 
         
 
              Although this case was heard by the undersigned while still 
 
         a deputy, the undersigned is now the Industrial Commissioner and 
 
         the agency will treat this decision as a final agency decision.
 
         
 
             The record consists of the testimony of claimant, LuRie 
 
         Fairlie, Fred Nekola, Mary "Pat" Usher and Hugh MacMenamin, M.D.; 
 
         claimant's exhibits 1 through 10 and defendant's exhibits A, B, 
 
         E, F, J, K, L and portions of D, G, H, and I which were not 
 
         objected to.
 
         
 
                                      ISSUE
 
         
 
              The issue presented by the parties is the extent of 
 
         permanent partial disability related to claimant's injuries on 
 
         August 26, 1981, March 16, 1982, and February 7, 1984.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant started working for defendant in May of 1975.  On 
 
         August 26, 1981 claimant received an injury arising out of and in 
 
         the course of his employment with defendant when, while cutting 
 
         cords, he strained his back.  Claimant went to see the company 
 
         nurse and company doctor.  Claimant testified that he had no 
 
         prior problems with his back.  Claimant indicated that the pain 
 
         he experienced was in his back right buttock and right leg.  
 
         Claimant missed some work but then was released back to work on 
 
         September 3.  Claimant testified that his back pain, right 
 
         buttock pain and right leg pain has continued and basically not 
 
         changed since that date.
 
         
 
              On March 16, 1982 claimant had another injury when he fell 
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page   2
 
         
 
         
 
         backwards off a stand onto a metal grate.  Claimant disclosed 
 
         that he was off a couple of days but then returned to work.  
 
         Claimant stated his back, right buttock pain and right leg pain 
 
         continued as before the March 16, 1982 injury.
 
         
 
              On February 7, 1984 claimant was again injured when he 
 
         fell down icy steps at work.  Claimant stated he bounced down 
 
         the steps on his buttock and back.  Claimant returned to work 
 
         the following day.  Claimant revealed that his back pain, right 
 
         buttock pain and right leg pain continued as before the 
 
         injury.
 
         
 
              On March 21, 1985 claimant alleges he had another injury 
 
         while working for Farmstead Foods when while bending down and 
 
         lifting up four gambrels he felt a sharp pain like an 
 
         electrical shock in his back.
 
         
 
              In a report to William R. Finn, M.D., dated December 19, 
 
         1978, W. J. Robb, M.D., stated:
 
         
 
                 Russell J. Keeney was examined on December 15, 1978, in 
 
              regard to persisting pain in his dorsal spine or thoracic 
 
              spine as a result of injury incurred in September, 1978, in 
 
              an automobile accident near Oelwein, Iowa.  He was riding as 
 
              a passenger in a van, the van was hit from behind and rolled 
 
              over several times, and he sustained injury to his back.  He 
 
              was transferred from Oelwein to St. Luke's Hospital in Cedar 
 
              Rapids and attended here.
 
         
 
                 Subsequent to the accident, he developed some back pain, 
 
              primarily mid or upper back area.  He does not recall having 
 
              had any problem with his neck.  He had to remain off work on 
 
              several occasions because of the pain in the back and in 
 
              spite of improving some, he still has soreness in this area.  
 
              He is working at this time, however.
 
         
 
                 On examination he shows a full range of motion of 
 
              flexion, extension, and lateral bending.  He is moderately 
 
              tender over the erector spinae muscle mass on the right from 
 
              T4 to T12.  This is a generalized tenderness, and I don't 
 
              detect any trigger points.  Full flexion of the spine did 
 
              not seem to produce any symptoms.
 
         
 
                 X-ray examination of the dorsal spine does not reveal any 
 
              evidence of fracture-dislocation or abnormality of the bone 
 
              or joint.
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page   3
 
         
 
         
 
         
 
                 Diagnosis: STRAIN, ERECTOR SPINAE MUSCLE MASS, DORSAL 
 
              SPINE
 
         
 
                 Treatment:  The patient's work is probably heavy enough 
 
              that it is straining the muscles some and constitutes some 
 
              aggravation but on the other hand I see no reason why he 
 
              should not continue working.  I think the symptoms of which 
 
              he complains are temporary in nature and will gradually 
 
              subside.  I did order some Nalfon, 300 mg.  One q.i.d. to 
 
              try for a period of two to three weeks and could be renewed 
 
              if beneficial.  I shall plan to check him once more in two 
 
              months.
 
         
 
              Earl Y. Bickel, M.D., in a report dated October 3, 1985, 
 
         stated:
 
         
 
                 I saw Russell J. Keeney on March 17, 1982.  I saw him on 
 
              only one visit.  Laboratory tests were obtained.  A letter 
 
              was sent to Wilson's on March 23, 1982, and at this time I 
 
              felt that he had myositis or spondylosis.  I was not able to 
 
              explain the exact nature of his problem.
 
         
 
                 He was placed on some Tolectin, and I felt that his 
 
              problems would subside.  At that time I did not anticipate 
 
              any permanent disability.
 
         
 
              In his report dated September 22, 1986, John R. Huey, M.D., 
 
         stated:
 
         
 
                 I saw Russell Keeney in my office March 23, 1984 with a 
 
              three week history of pain in his back.  He stated he had 
 
              had no prior treatment for back problems.  He was working on 
 
              a job at Wilson and Company which involved bending over and 
 
              pulling.  Most of his pain was in the mid lumbar area of the 
 
              back and over the sciatic nerve.  He was not having any 
 
              complaint of numbness in the legs.  He had seen the company 
 
              doctor and also Dr. Bickel who placed him on Tolectin and 
 
              obtained an arthritis profile which was negative.  He 
 
              continued to work with only occasional absences.
 
         
 
                 On examination straight leg raising tests caused pain on 
 
              the right at about 1800 and were negative on the left.  No 
 
              muscle weakness, spasm or rigidity was present.  Reflexes 
 
              were physiological and he could bend well in all directions.  
 
              No sensory changes were noted.  X-rays of his pelvis were 
 
              negative for the hip area.  Other than a spina bifida of the 
 
              first sacral segment, the films were essentially negative of 
 
              his lumbosacral spine.  I felt he had a mildly congenital 
 
              weak lumbar spine and advised William's exercises.  He was 
 
              told to try to live with and around his problem and to 
 
              elevate his work.
 
         
 
                 In summary, his findings were basically negative.  The 
 
              straight leg raising tests at 1801 were mainly on a muscular 
 
              basis only.  I could find no evidence of neurological 
 
              deficit and I feel he has no permanency from this episode.
 
         
 
              In a report to claimant's attorney dated December 16, 1985, 
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page   4
 
         
 
         
 
         Hugh P. MacMenamin, M.D., stated:
 
         
 
                 In reply to your request for information on the above 
 
              patient, in having examined the documents you sent, I would 
 
              state the following.
 
         
 
                 My working diagnosis on Russell Keeney is chronic low 
 
              back pain-chronic myofascial strain.  His second diagnosis 
 
              is degenerative disc disease with a very minimally bulging 
 
              L-5 S-1 disc and spina bifida occulta of S-1.
 
         
 
                 Specifically in answer to your question #1 whether the 
 
              incident of August 21, 1981, pulling hogs, was a causal, 
 
              contributing, or aggravating factor in producing his back 
 
              complaints, I have no specific way of telling.  From Mr. 
 
              Keeney's history it sounds as though this was the case.  
 
              However I do not have any medical records from this period 
 
              of time.
 
         
 
                 The incident of March, 1985 picking up gambrels and 
 
              trolleys off the floor appeared to exacerbate his pain 
 
              also.
 
         
 
                 As to your question #3, in examining the records and in 
 
              examining the modalities for issuing a permanent partial 
 
              impairment rating, namely the American Medical Association 
 
              Guide and the Manual for Orthopaedic Surgeons in evaluating 
 
              permanent physical impairment, I do not find any evidence of 
 
              a permanent partial impairment.
 
         
 
                 As to your question #6 regarding Mr. Keeney's prognosis, 
 
              he will probably continue with symptoms as he has in the 
 
              past, that is, intermittent low back pain associated with 
 
              exertion or activities as outlined in his history.  I would 
 
              not put any limitations on his future employment.  I would 
 
              encourage him to continue to work as he has been doing over 
 
              the years.
 
         
 
              Dr. MacMenamin saw claimant on October 8, 1986.  A report 
 
         which appears to be dated October 16, 1986 states:
 
         
 
                 10/09/86: This patient is a 32-year-old white male who is 
 
              seen for evaluation at the request of Wilson Foods.  He is 
 
              seen for evaluation of back pain and right buttock and thigh 
 
              pain.  He states he had the onset of his symptoms in August 
 
              of 1980.  His job at Wilson's Food at that time was cutting 
 
              cords on hogs.  This required him to be in a bent over 
 
              position, with the knife in one hand and pulling with the 
 
              other.  He states at that time that production speeded up.  
 
              Following this, he noted pain in his back in the right "hip" 
 
              and the right buttock.  He worked through the next several 
 
              weeks and noted that he had to take a bath and relax every 
 
              night in order to try to gain enough strength for work the 
 
              next day.  He states that he has very little sleep at night 
 
              because of the pain.  He has had a history of back pain 
 
              prior to this, but it was mostly in the upper back and not 
 
              in the lower back.
 
         
 
                 He was seen at this office 6/l/79 by Dr. Strathman for 
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page   5
 
         
 
         
 
              back pain related to a motor vehicle accident.  This was in 
 
              the upper back.  He was seen 3/23/84 by Dr. Huey at this 
 
              office for trouble with his back related to work.  He had 
 
              pain in the right hip at that time.  As stated, it had been 
 
              bothering him for several months.  In August, 1980, the 
 
              patient states he saw the nurse at Farmstead Foods and 
 
              subsequently saw Dr. Sloan and Dr. Solmonson.  He was 
 
              treated with medications with only minimal improvement.  He 
 
              continued having a lot of pain at night and difficulty 
 
              working.  He relates one time in 1980 he was reaching and 
 
              felt sudden pain in the right thigh and hip.  He has seen 
 
              Dr. Bickel in and around 1983.  I do not have a copy of the 
 
              record of this.  He had lower and upper back pain at that 
 
              time.  He states that he saw Dr. Bickel after he went to 
 
              Union Hall and asked where he could receive help.  He states 
 
              that Dr. Bickel did tests for arthritis which were 
 
              apparently negative.  He went to physical therapy for two 
 
              weeks.  He states that he was diagnosed as having spina 
 
              bifida which he says now has been disproven.
 
         
 
                 He has had persistent low back pain and right buttock 
 
              pain through the years.  He has been absent on several 
 
              occasions from work.  He is presently working and does five 
 
              different jobs.  He states that he cannot stay in the same 
 
              job more than several days, otherwise his back will bother 
 
              him.
 
         
 
                 EXAMINATION:  He is a health-appearing white male.  His 
 
              forward flexion beyond 50 degrees produces discomfort.  
 
              Lateral bending is 20 degrees bilaterally.  His straight leg 
 
              raising signs, on the right, he appears to resist any 
 
              attempt at straight leg raising beyond 50 degrees.  On the 
 
              left, it is negative.  He states that he gets back pain on 
 
              the right side with attempts at straight leg raising.  Ankle 
 
              jerk and knee jerk are 2+ and symmetrical, bilaterally.  
 
              Ankle dorsiflexion and toe dorsiflexion is normal.  He notes 
 
              sensation is decreased on the lateral aspect of the right 
 
              foot.  Patrick's test and pelvic rock tests are negative.
 
         
 
                 From reviewing the notes, his CT scan done 5/11/85 at 
 
              Mercy Hospital does appear to have a small bulging disk to 
 
              the left side at the L5-Sl level.  Lumbosacral spine films 
 
              done at Mercy Hospital showed slightly narrowed L5-Sl.  
 
              There are no other distinct abnormalities.
 
         
 
                 IMPRESSION:  1.  Degenerative disk disease, L5-Sl, with 
 
              protrusion to the left.
 
         
 
                 DISCUSSION:  This is the opposite side from the patient's 
 
              symptoms.  I still do not have any distinct pathological 
 
              cause for the patient's right-sided hip pain.  Perhaps a 
 
              follow up CT scan or even a myelogram would help to resolve 
 
              this.
 
         
 
                 The findings on testing, i.e., the left-sided disk 
 
              protrusion, does not appear to match the patient's symptoms.  
 
              We do know that he has degenerative disk disease at the 
 
              L5-Sl level.  At most, I would confer that this will give 
 
              the patient a 5% impairment and loss of physical function to 
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page   6
 
         
 
         
 
              the whole body.
 
         
 
         On December 23, 1986 Dr. MacMenamin stated that after reviewing 
 
         claimant's chart he still opined claimant's impairment to be five 
 
         percent.
 
         
 
              On March 21, 1986 Jerome G. Bashara examined claimant on 
 
         behalf of claimant and gave the following report.
 
         
 
              EVALUATION
 
              3-21-86
 
         
 
                  This is an evaluation being seen for the Attorney 
 
              Phillip Vonderhaar.  The patient is accompanied today by a 
 
              cover letter from Mr. Vonderhaar; a signed patientOs waiver; 
 
              employee records (health records) from the Wilson Food 
 
              Corporation/Farmstead Food Corporation of Cedar Rapids, 
 
              Iowa; medical records from the Mercy Hospital Trauma Center 
 
              in Cedar Rapids, Iowa; medical records from the Lynn County 
 
              Orthopedists, P.C.; medical records from Dr. Huey; medical 
 
              records from Dr. MacMenamin; medical records from the Frank 
 
              T. Hazelton Physical Therapists; a deposition taken on 
 
              Russell J. Keeney; medical records from Dr. Robb and Dr. 
 
              Bickel; medical records from Dr. Finn's office in Cedar 
 
              Rapids, Iowa; x-rays from the Cedar Rapids Radiologists 
 
              P.C.; x-rays from the Orthopaedic Surgeons, P.C. in Cedar 
 
              Rapids; and x-rays from the Cedar Rapids Mercy Hospital.
 
         
 
              H.P.I.:
 
         
 
                 This is a 31 year old white male who has sustained 
 
              multiple injuries to his lower back while at work for the 
 
              Wilson Foods Corporation, now the Farmstead Food Corporation 
 
              of Cedar Rapids, Iowa.
 
         
 
                 The following history was obtained both from the patient 
 
              and corroborated with the above medical records which were 
 
              researched.  He had some intermittent back discomfort, 
 
              primarily in his neck and thoracic region in the late 
 
              1970Os.  Sometime in mid July of 1981, he developed low back 
 
              pain with pain radiating down his right lower extremity.  
 
              Sometime between July and August 26 of 1981, he began seeing 
 
              the company nurse on a regular basis for complaints of 
 
              persistent back pain with radiation down his right lower 
 
              extremity which he felt was brought on and aggravated by his 
 
              job in reaching and pulling hogs while at work.  He has been 
 
              treated nonoperatively throughout the past 5 year period 
 
              with physical therapy, medication and restricted activity 
 
              [sic].  He has had several other specific injuries to his 
 
              back since August and July of 1981.  On March 16, 1982 while 
 
              at work he fell approximately 2 feet off of a stand and 
 
              landed on a metal grate.  He was seen at that time at the 
 
              Mercy Hospital Trauma Center by Dr. Sawyers.  He was treated 
 
              for abrasions to his left hand and both elbows.  No x-rays 
 
              of his lumbar spine were taken at that time, although the 
 
              patient states that he fell because of pain in his lower 
 
              back.  He was seen by Dr. Earl Bickel in Cedar Rapids on 
 
              March 17, 1982.  Dr. BickelOs primary notes refer to his 
 
              problem from that accident being related to the cervical 
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page   7
 
         
 
         
 
              spine and thoracic spine regions.  Over the last 5 year 
 
              period this.patient has experienced intermittent pain down 
 
              through his lower back, right Sl Joint, with intermittent 
 
              pain radiating down his right lower extremity.
 
         
 
                 On 2-7-84, while he was attempting to go down some ice 
 
              covered metal steps, he fell and bounced down approximately 
 
              14 metal grated steps.  He complained of pain in his left 
 
              elbow, left scapular region and in his back.  X-rays were 
 
              taken at the Mercy Hospital Trauma Center in Cedar Rapids, 
 
              Iowa.  He was released and instructed with ice and aspirin.  
 
              The patient was seen by Dr. John Huey in Cedar Rapids on 
 
              3-23-84, Orthopeadic [sic] Surgeons, P.C. for complaints of 
 
              low back pain.  X-rays were taken at that time and he was 
 
              started on a William's back exercise program.
 
         
 
                 On 3-21-85 he was bending over to pick up some gambriels 
 
              [sic], weighing approximately 3 lbs. each - 2 in each hand, 
 
              when he developed some severe low back pain and this time 
 
              the pain radiated down his left lower extremity.  The 
 
              patient was seen by Dr. MacMenamin.  X-rays were reviewed 
 
              from Mercy Hospital.  A CT Scan was ordered.  A diagnosis at 
 
              that time was made of a herniated disc at the L5-Sl level, 
 
              primarily left sided herniation.
 
         
 
                 The patient continues to have back and primarily right 
 
              lower extremity pain aggravated by lifting, twisting or 
 
              bending and somewhat relieved by rest.
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page   8
 
         
 
         
 
         
 
              P.M.H.:
 
         
 
              OPERATIONS:  None 
 
         
 
              MEDICATIONS:  None 
 
         
 
              DRUG ALLERGIES:  None
 
         
 
              F. & S.H.:
 
         
 
              He is married and employed at Farmstead as a production 
 
         worker.
 
         
 
              P.X.:
 
         
 
              Height:  5O10"
 
              Weight:  182 lbs.
 
         
 
                 He has mild lumbar paraspinous muscle spasm, particularly 
 
              on the right.  Mild tenderness at the L5-Sl interspace 
 
              posteriorly.  His straight leg raising produces back and 
 
              buttock pain on the right at 60 degrees and is negative on 
 
              the left at 80 degrees.  He has tight hamstrings 
 
              bilaterally.  A neurological exam of the lower extremities 
 
              is normal.
 
         
 
              X-RAYS:
 
         
 
                 X-rays were reviewed from the Cedar Rapids Radiologists, 
 
              P.C. dated 3-9-82, thoracic spine normal.  X-rays of the 
 
              cervical spine dated 3-9-82, reveal flattening of the normal 
 
              cervical lordosis, otherwise they appear normal.
 
         
 
                 X-rays were reviewed from the Orthopaedic Surgeons, P.C. 
 
              in Cedar Rapids dated 3-23-84 of the lumbosacral spine show 
 
              some mild narrowing of the L5-Sl disc space and a spina 
 
              bifida occulta of Sl.
 
         
 
                 X-rays were reviewed from the Cedar Rapids Mercy 
 
              Hospital, a CT Scan dated 5-10-85, there appears to be a 
 
              herniated disc at the L5-Sl level, centrally and to the 
 
              left.
 
         
 
              DIAGNOSIS:
 
         
 
                 1.  Herniated lumbar disc L4-Sl.
 
         
 
                 I would give the patient a 10% permanent partial physical 
 
              
 
         
 
              impairment of his body as a whole related to the above 
 
              diagnosis.
 
         
 
                 It is impossible to determine how much of the permanency 
 
              rating is attributed to each of the incidents which occurred 
 
              at work, but feel that the 10% permanency rating is related 
 
              to some increased symptoms which started in July or August 
 
              of 1981 and progressively got worse until the present time.
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page   9
 
         
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 26, 1981; March 16, 
 
         1982; and February 7, 1984 are causally related to the disability 
 
         on which he now bases his claim.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. 0. Boggs, 236 
 
         Iowa 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).
 
         
 
              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).
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W. 2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
                                        
 
                                     ANALYSIS
 
         
 
              Claimant has failed to meet his burden in proving his 
 
         injuries of March 16, 1982 and February 7, 1984 resulted in any 
 
         permanent impairment or disability.  Claimant's own testimony 
 
         indicates that claimant's back, right buttock and right leg pain 
 
         was not changed as a result of either of these injuries.  
 
         Furthermore, the greater weight of medical evidence supports such 
 
         a conclusion.
 
         
 
              The real question then is, does claimant have any permanent 
 
         impairment or disability as a result of his injury on August 26, 
 
         1981?  From the claimant's own statements and the medical 
 
         evidence that has been presented claimant's back complaints did 
 
         predate his August 26, 1981 injury.  Not only was claimant 
 
         involved in a motor vehicle accident, claimant had pain in the 
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page  10
 
         
 
         
 
         right side of his back (Defendant's Exhibit F, page 150) and the 
 
         nurses notes indicate that claimant was having low back 
 
         complaints as early as June of 1981.  By claimant's own testimony 
 
         he was having problems sleeping prior to his August 26, 1981 
 
         injury.  There are also incidents subsequent to his August 26, 
 
         1981 injury about which not much has been said.  It would appear 
 
         that claimant injured his back shoveling snow (Def. Ex. F, p. 
 
         152).  Furthermore, the greater weight of medical evidence 
 
         indicates that claimant had no permanent impairment as a result 
 
         of the August 26,.1981 injury.  Dr. Bickel opined claimant had no 
 
         permanent disability on March 17, 1983.  In a letter dated 
 
         December 16, 1982 Dr. MacMenamin, a treating physician, indicated 
 
         he could find no evidence of permanent partial impairment.  More 
 
         weight is given to claimant's treating physicians than Dr. 
 
         Bashara who merely examined claimant.  Therefore, claimant only 
 
         met his burden in proving he had a temporary aggravation of a 
 
         preexisting condition.  Although there is evidence that might 
 
         support a decision in favor of claimant as a result of his injury 
 
         of March 21, 1985 that matter is not before the undersigned.
 
         
 
              It should be pointed out that even if claimant had shown a 
 
         permanent impairment as a result of his injury on August 26, 1981 
 
         he would still not have prevailed.  Permanent impairment is only 
 
         one of the considerations in determining industrial disability.  
 
         Claimant returned to work and continued to do that work at least 
 
         up to March 21, 1985 in the same position he held prior to his 
 
         August 26, 1981 injury.  Weighing all the factors that one 
 
         considers in determining industrial disability, claimant failed 
 
         to prove any disability resulted from the August 26, 1981 injury 
 
         or that he had a reduction in his earning capacity.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
         FINDING 1.  On August 26, 1981 claimant received an injury while 
 
         working or defendant.
 
         
 
         FINDING 2.  Prior to his injury on August 26, 1981 claimant had 
 
         problems with his back.
 
         
 
         FINDING 3.  As a result of his August 26, 1981 injury claimant 
 
         missed work for which he has been compensated.
 
         
 
         FINDING 4.  Claimant has no permanent impairment as a result of 
 
         his August 26, 1981 injury.
 
         
 
         CONCLUSION A.  Claimant failed to prove that his August 26, 1981 
 
         injury resulted in any permanent disability.
 
         
 
         CONCLUSION B.  Claimant did meet his burden in proving a 
 
         temporary aggravation of his preexisting condition.
 
         
 
         FINDING 5.  On March 16, 1982 claimant was injured while working 
 
         for defendant.
 
         
 
         FINDING 6.  As a result of his March 16, 1982 injury, claimant 
 

 
         
 
         
 
         
 
         KENNEY V. WILSON FOODS CORPORATION
 
         Page  11
 
         
 
         
 
         missed work for which he has been compensated.
 
         
 
         FINDING 7.  Claimant has no permanent impairment as a result of 
 
         his March 16, 1982 injury.
 
         
 
         CONCLUSION C.  Claimant failed to prove that his March 16, 1982 
 
         injury resulted in any permanent disability.
 
         
 
         FINDING 8.  On February 7, 1984 claimant was injured while 
 
         working for defendant.
 
         
 
         FINDING 9.  Claimant's medical bills were paid.
 
         
 
         FINDING 10.  Claimant's injury of February 7, 1984 did not result 
 
         in claimant qualifying for temporary total disability benefits 
 
         because he did not lose the required time.
 
         
 
         FINDING 11.  Claimant's injury of February 7, 1984 resulted in no 
 
         permanent impairment.
 
         
 
         CONCLUSION D.  Claimant failed to prove his February 7, 1984 
 
         injury resulted in any permanent disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, claimant is to take nothing as a result of these 
 
         proceedings.
 
         
 
              Costs are taxed to defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 29th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309-1398
 
         
 
         Mr.,John M. Bickel
 
         Mr. Ralph W. Gearhart
 
         Attorneys at Law
 
         P.O. Box 2107
 
         Cedar Rapid, Iowa 52406-2107
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.40 - 2906
 
                                                Filed January 29, 1988
 
                                                DAVID E. LINQUIST
 
         
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RUSSELL J. KEENEY,
 
                                                File Nos. 789227/679931
 
                                                          789226
 
              Claimant,
 
                                                 A R B I T R A T I 0 N
 
         VS.
 
                                                         A N D
 
         WILSON FOODS CORPORATION,
 
                                                     R E V I E W -
 
              Employer,                           R E 0 P E N I N G
 
              Self-Insured,
 
              Defendant.                           D E C I S I 0 N
 
         
 
         
 
         1402.40
 
         
 
              Claimant failed to establish that any of his work injuries 
 
         resulted in permanent impairment or industrial disability.
 
         
 
         2906
 
         
 
              Although this case was heard by the undersigned while still 
 
         a deputy, the undersigned became the industrial commissioner and 
 
         the agency treated this decision as a final agency decision.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CRAIG A. DANN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 789249
 
         ALUM.ALINE CUTLERY CO., INC.,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA SMALL BUSINESS WORKERS
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
              Claimant appeals from a ruling sustaining defendants' motion 
 
         for summary judgment.  The record on appeal consists of the 
 
         filings and pleadings of the parties.
 
         
 
              Review of the record discloses the ruling of the deputy was 
 
         appropriate and it is adopted as the final ruling.
 
         
 
              WHEREFORE, defendants' motion for summary judgment is 
 
         sustained and claimant's petition is dismissed.  All costs are
 
         taxed to claimant.
 
         
 
         
 
              Signed and filed this 15th day of January, 1987.
 
         
 
         
 
         
 
                                              ROBERT C.LANDESS
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John Behnke
 
         Attorney at Law
 
         Box F
 
         Parkersburg, Iowa 50665
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         300 Fleming Bldg.
 
         218 Sixth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1100-1402.30-2902
 
                                                   Filed January 15, 1987
 
                                                   ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CRAIG A. DANN,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                      File No. 789249
 
         ALUMALINE CUTLERY CO., INC.,
 
                                                        A P P E A L
 
         Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         IOWA SMALL BUSINESS WORKERS
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100 - 1402.30 - 2902
 
         
 
              Claimant's statements indicating injury received outside of 
 
         employment supported summary judgment for defendants.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         RICHARD CARPENTER,
 
         
 
               Claimant,
 
                                               File No. 789333
 
         vs.
 
         
 
         C. W. TRANSPORTATION,               A R B I T R A T I 0 N
 
         
 
               Employer,                        D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Richard 
 
         Carpenter, claimant, against C. W. Transportation, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on February 7, 1985.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner May 
 
         12, 1988.  The record was considered fully submitted at the close 
 
         of the hearing.  The record in this case consists of the 
 
         testimony of claimant and Louise Carpenter, his wife; and joint 
 
         exhibits 1 through 7, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved May 12, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  Whether the work injury is the cause of permanent 
 
         disability;
 
         
 
              2.  The nature and extent of claimantOs entitlement to 
 
         permanent partial disability benefits, if any; and,
 
         
 
              3.  The applicability of the odd-lot doctrine.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant, a truck driver, sustained an injury which arose 
 
         out of and in the course of his employment on February 7, 1985, 
 
         when, while unloading a trailer, he felt his shoulder "snap."  
 
         Claimant testified that although he felt pain, he continued 
 
         working and that he did not seek medical care until approximately 
 
         two weeks later when he saw a Dr. McCoy of the Ankeny Emergency 
 

 
         Clinic who "took" him off work.  Claimant stated that at this 
 
         time he could not shift the gears in his truck and that it hurt 
 
         to turn the steering wheel.  Claimant explained that he was 
 
         referred to Dr. Flapan who gave him a "shot in the shoulder" 
 
         (which claimant felt helped for a day) and that Dr. Flapan told 
 
         him to return to work.  Claimant stated he did return to work, 
 
         continued treating with the doctors at the Ankeny Emergency 
 
         Clinic, that he was in "constant" pain which was getting worse in 
 
         that he could no longer lift, reach or shift gears and that he 
 
         was compensating with his left arm.  Claimant testified he was 
 
         taken off work again in September 1985 and referred to Dr. 
 
         Friedgood by the Ankeny doctors who, in turn, referred him to Dr. 
 
         Neff.  Claimant stated he has not worked at all since September 
 
         11, 1985 and that the strength in his arm has been affected.  
 
         Claimant testified that Dr. Neff ran several tests and that he 
 
         had surgery on his A/C joint in October 1985 which "did not help" 
 
         since he still had pain and that any pressure placed on his 
 
         shoulder, even that from a shirt that he wore, caused pain.  
 
         Claimant described a second surgery in January 1986 where part of 
 
         his collar bone was removed and that currently he suffers from a 
 
         constant ache from his elbow to his shoulder to the back of his 
 
         neck to the bottom of his head, of limited ability to move his 
 
         arm, that his hands feel swollen at times and that sometimes the 
 
         tips of his fingers feel numb.  Claimant recalled he has had 
 
         chest pain in his collar bone area and that he once went to the 
 
         emergency room as a result of this pain.  Claimant also described 
 
         that his shoulder "locks" on him and that when it does he 
 
         requires his wife's assistance to move it back into position.  
 
         Claimant testified to limited home activities, that what he does 
 
         he must do left-handed and that he "cannot hardly lift anything." 
 
         Claimant stated he "does not sleep that much" waking two or three 
 
         times during the night, that his mind has a tendency to wonder as 
 
         a result of the pain and that he uses hot showers, hot pads and 
 
         pain medication every morning to counteract the pain.
 
         
 
              Claimant stated there was "no way" he could drive straight 
 
         truck or semi-tractors/trailers, or that he could load or 
 
         unload, that he has not looked for work as he was told his 
 
         "working days are over" and that he has not had any vocational 
 
         rehabilitation.  Claimant testified he was in "good health" 
 
         prior to this injury although he had had back surgery in 1962 
 
         after which he was returned to work without restriction, 
 
         another back surgery in 1969 after which he had no problems, 
 
         and that he had hurt his neck in 1975 or 1976 and was paid a 
 
         seven percent disability as a result thereof.  Claimant stated 
 
         that after this surgery he had no problems and returned to work 
 
         without restriction.  Claimant did indicate that in 1980 his 
 
         right thumb was caught in a dock plate while at work and that 
 
         he also had surgery for its repair.
 
         
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE   3
 
         
 
              On cross-examination, claimant revealed he suffers from 
 
         emphysema but denied he was told to quit smoking (although he 
 
         acknowledged he was told to cut down) or that if he did quit 
 
         smoking it would help the pain in his chest.  Claimant 
 
         explained he receives a pension of $700 per month and social 
 
         security disability benefits of $585 per month.  Claimant 
 
         testified he last saw Dr. Neff in approximately March 1988 and 
 
         that he did not have a current appointment to see him in the 
 
         future.
 
         
 
              Louise Carpenter testified that claimant's previous back 
 
         surgeries did not interfere with either his ability to do his 
 
         job or his work around the home but that since his 1985 injury 
 
         his disposition has changed in that he is "grumpier" and that 
 
         it is harder for him to concentrate and to think.  Mrs. 
 
         Carpenter stated that claimant lies down, showers, uses heating 
 
         pads and medication to deal with the pain he is feeling, that 
 
         claimant drops things, that he does not sleep "much" and that 
 
         his shoulder locks.
 
         
 
              The medical records of Scott B. Neff, D.O., orthopedic 
 
         surgeon, reveal.claimant was first seen on September 25, 1985 
 
         and was noted to have:
 
         
 
              ...minimal,motion in his right shoulder, weakness on 
 
              active abduction, and a markedly positive impingement 
 
              maneuver with forward flexion of the shoulder.  Passive 
 
              internal and external rotation in the elevated position 
 
              also reproduces his pain.  He has pain over the right 
 
              acromioclavicular joint, and it appears somewhat more 
 
              prominent than that of the left.  The left side has 
 
              full motion without abnormalities, and has active 
 
              strong abduction.
 
         
 
         (Joint Exhibit 1, page 5)
 
         
 
              Dr. Neff recommended a bone scan with attention to the A/C 
 
         joints, arthrogram of the right shoulder and plain x-rays of the 
 
         A/C joints.  The arthrogram did not show a rotator cuff tear but 
 
         did show "impingement from largo subacromial and subclavicular 
 
         osteophytes" with "some element of disuse atrophy of the shoulder 
 
         following these months and months of pain."  The bone scan showed 
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE   4
 
         
 
         increased uptake in both the acromioclavicular joints, slightly 
 
         greater on the right and Dr. Neff recommended "excision of the 
 
         distal clavicle, subacromial decompression, excision of the 
 
         subacromial bursa."  Claimant was referred for outpatient surgery 
 
         on October 31, 1985 and on November 6, 1985, Dr. Neff noted 
 
         claimant appeared to be healing nicely but that he would require 
 
         a "significant rehabilitative process because of the magnitude of 
 
         his surgery" and "age."  By the end of November, claimant was 
 
         reporting tenderness at the base of his neck and over the right 
 
         side of the shoulder so that he could not stand to have his shirt 
 
         touch it.  Dr. Neff stated:
 
         
 
                 I am not certain what is occurring, and this patient 
 
              appears to me to be clinically depressed, and 
 
              frustrated.  I have no idea why he should be having 
 
              tenderness in the skin from his shirt.  There is no 
 
              swelling or skin changes in the hand, and he does not 
 
              appear to be having a reflex sympathetic dystrophy."
 
         
 
         (Jt. Ex. 1, p. 8)
 
         
 
              Dr. Neff later recommended a CT scan of the shoulder which 
 
         showed some degenerative changes in his neck without evidence of 
 
         disc herniation.  On January 14, 1986, claimant underwent distal 
 
         clavicle resection of the right A/C joint and approximately one 
 
         month later Dr. Neff noted claimant's shoulder motion had 
 
         markedly improved but that claimant continued to have persistent 
 
         point tenderness in the A/C joint.  Dr. Neff found claimant to be 
 
         "doing relatively well" although the second surgery was expected 
 
         to "somewhat slow down the recovery and rehabilitative process." 
 
          In March 1986, claimant was noted to be markedly improved but 
 
         still suffering from an aching and on May 7, 1986, Dr. Neff 
 
         wrote:
 
         
 
                 In light of his persistent symptoms, I do not 
 
              believe it is going to be possible for him to return to 
 
              his job of loading trucks, and feel that he should be 
 
              given a rating and considered for alternative 
 
              employment.  I don't know whether he is trainable at 
 
              his age and educational background to do anything 
 
              else.
 
         
 
         (Jt. Ex. 1, p. 15)
 
         
 
              Dr. Neff "strongly supported" another opinion stating:  "I 
 
         wonder if we are dealing with an overlay depression type 
 
         problem." In May 1986, claimant was sent to Iowa City for 
 
         evaluation and in August 1986, he was sent to the Mayo Clinic.  
 
         Neither of the doctors he saw had any recommendations nor 
 
         solutions to claimant's symptoms although Brian F. Kavanagh, 
 
         M.D., of the Mayo Clinic opined claimant "had, basically, 
 
         cervical tension myalgia" as well as some "impingement-type 
 
         bursitis, tendinitis in the shoulder." On April 18, 1987, Dr. 
 
         Neff concluded:
 
         
 
                 The neck pain has occurred following treatment of 
 
              his shoulder.  I am not certain whether or not he would 
 
              have developed neck muscle pain anyway or whether he 
 
              was having some when I first saw him and it was not 
 
              bothering him to a very great degree because the 
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE   5
 
         
 
              symptoms in his shoulder were masking the less intense 
 
              symptoms in his neck.
 
         
 
                 ....
 
         
 
                 Certainly it would not be fair to include any 
 
              possible sequelae of his neck fusion into a rating on 
 
              the shoulder, and because he has had a neck fusion and 
 
              will without a doubt have some symptoms from that I 
 
              think it would be fair to state that he has an 
 
              impairment rating of 25% to the body as a whole.  
 
              Five-percent of that rating to the body as a whole 
 
              would be due to the range of motion loss and associated 
 
              symptoms in his neck which were due to his previous 
 
              surgery on the neck.  Twenty percent accordingly of the 
 
              impairment rating would be related to his shoulder 
 
              injury subsequent surgical treatment and resulting 
 
              range of motion loss and pain.
 
         
 
         (Jt. Ex. 1, p. 19)
 
         
 
              Thomas W. Bower, L.P.T., saw claimant for a functional 
 
         capacity evaluation on or about April 24, 1986 and stated:
 
         
 
                 This patient obviously has incurred a rather 
 
              substantial injury to the right shoulder which has 
 
              rendered his right upper extremity, at least from a 
 
              shoulder standpoint, useless.  All and all he has not 
 
              had a particularly good result from the surgery.  I 
 
              have explained to Mr. Carpenter that a lot of the 
 
              problems have resulted because he had a significant 
 
              injury to the right shoulder and his upper extremity 
 
              stamina is not certainly that of a 20-year-old 
 
              gentleman.  Never-the-less, Mr. Carpenter has put forth 
 
              maximum effort and is doing all that we have asked him 
 
              to do and has been a very hard worker in the 
 
              rehabilitation process.  Basing our clinical exam with 
 
              the Cybex Evaluation, it is certainly my opinion that 
 
              this gentleman will never return back to driving semiOs 
 
              and specifically unloading and loading these vehicles.  
 
              He will not be able to lift any heavy weights above a 
 
              90 degree position and it is doubtful that he will even 
 
              be able to move beyond the 72 degrees of active motion 
 
              which have been displayed by the Cybex.  Even light 
 
              articles are going to be a cumbersome problem for this 
 
              gentleman.  This is certainly substantiated by no 
 
              torque development on either strength or endurance 
 
              settings of the Cybex.  It appears he would be able to 
 
              do some useful work that requires only elbow flexion 
 
              and extension and all movements below any specific 
 
              elevation process of this shoulder.  I do have some 
 
              concern relative to the numbness and tingling that he 
 
              is experiencing in his right hand.  EMG's in the past 
 
              have not demonstrated any changes from a neural 
 
              standpoint.
 
         
 
         (Jt. Ex. 1, p. 37)
 
         
 
               Robert A. Hayne, M.D., reported claimant was under his care 
 
         in 1962 when claimant underwent a laminectomy for treatment of a 
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE   6
 
         
 
         herniated disc in the lumbar area, in 1976 when claimant 
 
         underwent an anterior cervical fusion for treatment of a 
 
         herniated disc at the C5,6 interspace and that claimant was last 
 
         seen on February 5, 1979 for pain in the back of the neck and 
 
         down the lateral aspect of the left upper extremity.  Dr. Hayne 
 
         stated on August 20, 1987:
 
         
 
         
 
              [I]t is my firm opinion that his present symptoms 
 
              referable to his shoulder date back to the injury on 
 
              the 7th of February, 1985.  I do not feel that there is 
 
              any causal relationship between the symptoms that 
 
              required a cervical fusion in 1976 and his present 
 
              shoulder injury and complaints.
 
         
 
         (Jt. Ex. 1, p. 51)
 
         
 
                           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).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 7, 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).  The 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
               The greater weight of evidence establishes a causal 
 
         connection between claimant's injury of February 7, 1985 and the 
 
         disability on which claimant now bases his claim.  Although it 
 
         cannot be the subject of dispute that claimant had some injury 
 
         prior to this 1985 injury, both Drs. Neff and Hayne conclude 
 
         these prior injuries did not cause claimant's current symptoms.  
 
         These opinions, taken in conjunction with claimant's own 
 
         testimony, allows claimant to meet his burden of proof on the 
 
         issue of causal connection.,
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE   7
 
         
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLongOs Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              If a claimant has an impairment to the body as a whole,  an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows,  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."  A shoulder injury, however, is not scheduled, being an 
 
         injury to the body as a whole.  Alm v. Morris Barick Cattle Co., 
 
         240 Iowa 1174, 38 N.W.2d 161 (1949).
 
         
 
              Of first concern is whether or not claimant's injury to his 
 
         shoulder is limited to the schedule or extends to the body as a 
 
         whole which would allow for a determination of industrial 
 
         disability.  Based upon the situs of the injury and the surgery, 
 
         as well as claimant's own testimony of subjective symptoms beyond 
 
         the upper extremity, it is accepted that claimant's injury 
 
         extends beyond the schedule and that claimant has sustained an 
 
         injury to the body as a whole.  See Alm, supra; Nazarenus v. 
 
         Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
         (Appeal Decision 1982) and Lauhoff Grain v. McIntosh, 395 N.W.2d 
 
         834 (Iowa 1986).  Therefore, the question becomes the extent of 
 
         claimant's permanent disability and concomitantly, whether 
 
         claimant is an odd-lot employee under Guyton v. Irving Jensen 
 
         Co., 373 N.W.2d 101 (Iowa 1985).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton, supra, a worker becomes an 
 
         odd-lot employee when an injury makes the worker incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  An odd-lot worker is thus totally disabled if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist.  Id., citing Lee v. Minneapolis Street 
 
         Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950).  
 
         The rule of odd-lot allocates the burden of production of 
 
         evidence.  If the evidence of degree of obvious physical 
 
         impairment, coupled with other facts such as claimant's mental 
 
         capacity, education, training or age, places claimant prima facie 
 
         in the odd-lot category, the burden should be on the employer to 
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.. Certainly in such a case 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         non-compensable by adding a presumption that light work is 
 
         available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE   8
 
         
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker fails in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
                 The commissioner did not in his analysis address any 
 
              of the other factors to be considered in determining 
 
              industrial disability.  Industrial disability means 
 
              reduced earning capacity.  Bodily impairment is merely 
 
              one factor in a gauging industrial disability.  Other 
 
              factors include the worker's age, intelligence, 
 
              education, qualifications, experience, and the effect 
 
              of the injury on the worker's ability to obtain 
 
              suitable work.  See Doerfer Division of CCA v. Nicol, 
 
              359 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
              of factors precludes the worker from obtaining regular 
 
              employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  
 
              See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 
 
              (Iowa 1980).
 
         
 
              In order to conclude that claimant is an odd-lot employee 
 
         under Guyton, it must be found that claimant has made a prima 
 
         facie case of total disability by producing substantial evidence 
 
         that he-is not employable in the competitive labor market.  While 
 
         it is clear that claimant has both a permanent impairment and 
 
         restrictions on his employability, it cannot be concluded that 
 
         claimant has shown he is unemployable within the competitive 
 
         labor market.  Claimant has presented no evidence that he has, in 
 
         any way, sought any type of competitive employment.  Merely 
 
         because claimant can no longer drive a truck does not necessitate 
 
         a conclusion that claimant is not employable.  Therefore, the 
 
         principles of Guyton are not applicable.  The question turns to 
 
         the extent of claimant's permanent partial disability.
 
         
 
              Dr. Neff, working alone and with Thomas Bower, L.P.T., has 
 
         found claimant to have both a functional permanent impairment and 
 
         permanent restrictions in his employability.  Functional 
 
         disability is an element to be considered in determining 
 
         industrial disability which is the reduction of earning capacity, 
 
         but consideration must also be given to the injured employee's 
 
         age, education, qualifications, experience and inability to 
 
         engage in employment for which he is fitted.  Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. 
 
         Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE   9
 
         
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         -motivation - five percent; work experience - thirty percent, 
 
         etc.  Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE  10
 
         
 
         disability.  It therefore becomes necessary for the deputy to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
          See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Claimant is currently 58 years old and has an eleventh grade 
 
         education, never having acquired his GED.  Claimant was 55 at the 
 
         time of his injury and may have had many years in his working 
 
         career ahead of him.  His loss of future earnings from employment 
 
         due to his disability may not be as severe as would be the case 
 
         with a younger individual.  See Becke v. Turner-Busch, Inc., 34 
 
         Biennial Report, Iowa Industrial Commissioner 34 (1979)  However, 
 
         his age could prove to be a problem in securing employment in 
 
         alternative vocations.  Claimant has principally earned his 
 
         living as a truck driver which work he is currently precluded 
 
         from performing as a result of the restrictions and limitations 
 
         imposed by Dr. Neff.  Claimant has a history of back and cervical 
 
         problems; however, none of these problems ever precluded him from 
 
         engaging in his chosen occupation.  The undersigned does find it 
 
         curious that claimant appears to have recovered easily from these 
 
         previous injuries and not to have recovered at all. from the 
 
         injuries sub judice.  Perhaps this is due to motivation, but 
 
         perhaps not.  However, both the reports of Dr. Neff and Mr. Bower 
 
         are replete with references to claimant's age.  These references 
 
         and claimant's motivation do not go without note.  Claimant 
 
         appears to be of at least average intellectual ability and to 
 
         possess the academic/vocational skills which may be necessary to 
 
         reenter the labor market if he should so desire.  Claimant also 
 
         possesses supervisory skills from the five years he worked as a 
 
         dock area supervisor at All American.  Claimant has not, however, 
 
         investigated alternative employment candidly acknowledging he has 
 
         not even looked for work.  Claimant has not been employed since 
 
         September 11, 1985, consequently, has no earnings and is 
 
         currently receiving pension benefits.  Notwithstanding, the 
 
         record is clear that as a result of the injury of February 7, 
 
         1985, claimant has suffered an actual loss of earnings and a loss 
 
         of earning capacity.  Considering then all the elements of 
 
         industrial disability enumerated above, it is concluded that 
 
         claimant has sustained a permanent partial disability of 50 
 
         percent for industrial purposes.  However, claimant had an 
 
         industrial disability of seven percent as a result of the injury 
 
         to his neck sustained in 1975/76.  Therefore, it is determined 
 
         that seven percent of claimant's 50 percent disability is 
 
         attributable to his previous injury and defendants are liable in 
 
         this case for permanent partial disability benefits based upon a 
 
         43 percent industrial disability therefore entitling claimant to 
 
         215 weeks of permanent partial disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course.of his employment on February 7, 1985.
 
         
 
              2.  As a result of the injury, claimant underwent surgery on 
 
         October 31, 1985.
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE  11
 
         
 
              3.  When claimant's symptoms failed to dissipate, he 
 
         underwent a second operation on January 14, 1986, a distal 
 
         clavicle resection of the right A/C joint.
 
         
 
              4.  Claimant continues to experience pain from his elbow to 
 
         his shoulder to the back of his neck to the bottom of his head, 
 
         and a limited ability to move his arm.
 
         
 
               5.  Claimant is 58 years old with an eleventh grade 
 
         education who has earned his living primarily as a truck driver.
 
         
 
              6.  Claimant has a permanent impairment as a result of the 
 
         work injury.
 
         
 
              7.  Claimant has permanent work restrictions as a result of 
 
         the work injury which precludes him from engaging in the 
 
         occupation of a truck driver.
 
         
 
              8.  Claimant has previous injuries which resulted in a 
 
         laminectomy for treatment of a herniated disc in 1962, another 
 
         back surgery in 1969, an interior cervical fusion for treatment 
 
         of a herniated disc at the C5,6 interspace in 1976.
 
         
 
              9.  Claimant was paid disability benefits as a result of the 
 
         1976 cervical fusion in the amount of seven percent.
 
         
 
             10.  Claimant has not worked since September 11, 1985 and is 
 
         currently receiving pension benefits and social security 
 
         disability benefits.
 
         
 
             11.  Claimant has not attempted to secure work since 
 
         September 11, 1985.
 
         
 
             12.  Claimant possesses skills necessary to secure employment 
 
         labor market.
 
         
 
             13.  Claimant sustained an injury to his shoulder which upper 
 
         extremity and into the body as a whole.
 
         
 
             14.  Claimant has sustained an industrial disability of 50 
 
         percent, seven percent of which is attributable to his previous 
 
         injury.
 
         
 
             15.  As a result of the injury of February 7, 1985, claimant 
 
         has an industrial disability of 43 percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established that a portion of the 
 
         disability on which he now bases his claim is causally connected 
 
         to his work injury of February 7, 1985.
 
         
 
              2.  Claimant has not established that he is an odd-lot 
 
         employee.
 
         
 
              3.  Claimant has established he has an industrial disability 
 
         of 50 percent, seven percent of which is attributable to a 
 

 
         
 
         
 
         
 
         CARPENTER V. C. W. TRANSPORTATION
 
         PAGE  12
 
         
 
         previous injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant two hundred fifteen (215) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of three hundred thirty and 04/100 dollars ($330.04) per 
 
         week commencing June 12, 1986.
 
         
 
              Defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                           DEBORAH A. DUBIK
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Channing Dutton
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th St, Ste 500
 
         West Des Moines, IA 50265
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, IA 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1803; 1803.1; 4100
 
                                                  Filed October 24, 1988
 
                                                  Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD CARPENTER,
 
         
 
              Claimant,                            File No. 789333
 
         
 
         vs.                                   A R B I T R A T I 0 N
 
         
 
         C. W. TRANSPORTATION,                     D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803; 1803.1
 
         
 
              Claimant sustained an injury to his shoulder and was found 
 
         to have sustained an injury to the body as a whole.  Claimant's 
 
         injury resulted in two surgical procedures, a functional 
 
         impairment of 20% and restrictions which precluded him from 
 
         engaging in his regular employment.  Claimant had limited range 
 
         of motion of his right upper extremity and symptoms into his neck 
 
         and back.  Claimant, age 58 with an eleventh grade education, 
 
         found to have sustained an industrial disability of 50%, seven 
 
         percent of which was attributable to a previous injury.
 
         
 
         4100
 
         
 
              Claimant, who made no attempt to secure employment since his 
 
         injury, found not to have met his burden of proof that he was an 
 
         odd-lot employee.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAMON TENEYUQUE,
 
         
 
              Claimant,
 
         
 
         vs.                                      FILE NO. 789389
 
         
 
                                              A R B I T R A T I 0 N
 
         SIVYER STEEL CORP.
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Ramon 
 
         Teneyuque, claimant, against Sivyer Steel Corporation, employer, 
 
         and Aetna Casualty & Surety Company, insurance carrier, 
 
         defendants, for benefits as the result of an injury that Occurred 
 
         on February 25, 1985.  A hearing was held in Davenport, Iowa on 
 
         February 19, 1988 and the case was fully submitted at the close 
 
         of the bearing.  The evidence consists of the testimony of Ramon 
 
         Teneyuque (claimant), Juanita Teneyuque (claimant's wife), and 
 
         joint exhibits A through I.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on February 25, 1985, that 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause Of temporary disability and 
 
         that claimant was paid temporary disability benefits for one and 
 
         one-sevenths weeks from March 3, 1985 to March 11, 1985 and that 
 
         temporary disability is no longer an issue in this case.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is to be March 
 
         11, 1985.
 
         
 
              That the rate of compensation in the event of an award is 
 
         $335.05 per week.
 
         
 

 
         
 
         
 
         
 
         TENEYUQUE V. SIVYER STEEL CORP.
 
         Page   2
 
         
 
         
 
              That the provider of medical services and supplies would 
 
         testify that their charges are fair and reasonable and 
 
         defendants are not offering contrary evidence.
 
         
 
              That defendants make no claim for employee nonoccupational 
 
         group plan benefits or permanent partial workers' compensation 
 
         benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits; and if so, the nature and extent of benefits, to 
 
         include whether claimant is entitled to scheduled member benefits 
 
         or industrial disability benefits.
 
         
 
              Whether claimant is entitled to certain medical expenses, 
 
         more specifically the charges of Albert Zimmer, M.D., and Mercy 
 
         Hospital.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is age 43 and has been employed by employer for 14 
 
         years.  He is currently employed as an arc air operator melting 
 
         steel with a torch.  This job requires him to wear goggles with 
 
         straps which must fit very tightly on his nose to keep dirt, 
 
         smoke and flying sparks away from his eyes.
 
         
 
              On February 25, 1985, while operating an electric hoist to 
 
         move two castings, one hook came out of the hole and caught on 
 
         the bottom of the rail.  When it came loose, it sprang up and 
 
         struck claimant a very hard blow in the nose.  Claimant could 
 
         feel blood in his throat when he tilted his head back.  He went 
 
         to First Aid and was taken to the doctor later that night.  The 
 
         doctor prescribed pain pills and sent him back to work the 
 
         following day.  Claimant continued to do his regular job.  The 
 
         goggles hurt his nose real bad and the pain pills did not work.
 
         
 
              Claimant said that he continued to complain to employer 
 
         about his pain and was sent to a specialist who performed surgery 
 
         on his nose.  He was off work several days.  He returned to work 
 
         on March 11, 1985 and has continued to suffer a great deal of 
 
         pain in his nose.  The pain pills do not alleviate the pain.  
 
         Claimant said that the nose specialist said that the pain was 
 
         from scars from the operation and that there was nothing more he 
 
         could do about this pain.  Claimant said that he then sought out 
 
         his own personal physician.
 

 
         
 
         
 
         
 
         TENEYUQUE V. SIVYER STEEL CORP.
 
         Page   3
 
         
 
         
 
         
 
              Claimant testified that the goggles still press down and 
 
         smash his nose.  This is because the goggles must be worn very 
 
         tightly to be effective in keeping dirt, smoke and sparks away 
 
         from his eyes.  The pressure of the glasses against his nose 
 
         causes pain in his nose, down the front of his face on both 
 
         sides, up into his head and even in the back of his head.  The 
 
         tip of his nose is still sore to any slight touching of any kind.  
 
         He can no longer dry his face with a towel in the normal manner 
 
         by wiping because the tip of his nose is extremely pain 
 
         sensitive.  He must very carefully blot it dry by barely touching 
 
         it.  Cold weather outdoors against his nose also causes pain.
 
         
 
              Claimant testified that his personal physician said that the 
 
         nerve is smashed and there is no surgery or medical treatment to 
 
         eliminate or reduce the pain.  The company nurse told him that 
 
         there is nothing more the company can do and that if he needed 
 
         additional care he would have to pay for his own doctor.
 
         
 
              Claimant testified that he is earning less now than at the 
 
         time of the injury but the reason was due to an economic decrease 
 
         in the rate of piece work.  It was not due to the injury.  
 
         Claimant said that he has been performing the same job that he 
 
         was performing at the time of the injury.
 
         
 
              Claimant's wife corroborated claimant's testimony that the 
 
         injury was exceptionally painful.  She could see his nose was 
 
         physically smashed down at the time of the injury.  His eyes 
 
         turned black.  He was unable to eat and went to bed but had 
 
         trouble sleeping due to the pain.   He also had trouble 
 
         breathing.  Even after the surgery he continued to have severe 
 
         pain and trouble sleeping.  The pain causes him to lay down more 
 
         frequently which he did not formerly do.
 
         
 
              B. E. Hoenk, M.D., diagnosed a displaced and depressed 
 
         fracture of the nasal bones on March 1, 1985.  Dr. Hoenk 
 
         performed outpatient surgery on the same date (Exhibit A).  
 
         Claimant was released to return to work on March 11, 1985 (Ex. 
 
         B).  Dr. Hoenk reported on March 29, 1985, that he performed a 
 
         closed reduction of a depressed and displaced nasal fracture 
 
         under general anesthesia at Mercy Hospital on March 1, 1985.  
 
         Claimant's post-operative course was not remarkable.  Claimant 
 
         exhibited an excellent cosmetic appearance along with good 
 
         airways and was released with regard to his nasal fracture (Ex. 
 
         C).
 
         
 
              The office records of Dr. Hoenk (ENT Associates) disclosed 
 
         that claimant was seen by both Dr. Hoenk and W. S. Barker, M.D., 
 
         in that office.  Claimant was seen again on March 19, 1985, after 
 
         his surgery, complaining of headaches and pain in the top of his 
 
         head.  His ENT examination was normal.  Claimant was told to see 
 
         his family doctor regarding any further evaluation for these 
 
         headaches (Ex. F, page 2).
 
         
 
              On August 12, 1985, claimant complained again to ENT 
 
         Associates about sensitivity around the tip of his nose.  
 
         Claimant was examined and the physical condition of his nose was 
 
         normal.  Claimant was reassured that no therapy was needed (Ex. 
 
         F, p. 2).
 

 
         
 
         
 
         
 
         TENEYUQUE V. SIVYER STEEL CORP.
 
         Page   4
 
         
 
         
 
         
 
              On October 15, 1985, claimant returned to ENT Associates.  
 
         He was satisfied with the physical appearance of his nose but 
 
         complained of pain in the tip of his nose.  His physical 
 
         examination again was essentially normal.  The office notes 
 
         added, however, that the pain etiology is possible neuralgia 
 
         (pain along the route of a nerve) secondary to the crushing 
 
         effect of the initial injury (Ex. F, p. 3).
 
         
 
              On October 28, 1985, Dr. Barker recorded pain around the tip 
 
         of the nose elicited by simply brushing the skin lightly.  
 
         Pressing deeper did not decrease the discomfort.  Physical 
 
         examination of the nose again was normal.  Dr. Barker speculated 
 
         that possibly claimant has a neuralgia or neuritis of the 
 
         anterior ethmoidal nerve.  He prescribed a medication and stated 
 
         that if it was not successful then he could not suggest any other 
 
         treatment (Ex. F, p. 3).  Dr. Barker wrote as follows on November 
 
         13, 1985:
 
         
 
              It is my impression that the physical examination was 
 
              completely normal with the exception of some slight 
 
              irregularity detected by palpation on the nasal 
 
              pyramid.  The nasal fragments were in good re-alignment 
 
              but because of the unusual pain he was experiencing in 
 
              the lower part of his nose, Dilantin 100mg three times 
 
              daily for twenty days was prescribed on a one time 
 
              basis.  No future treatment was recommended by me.
 
              (Ex. D)
 
         
 
              Dr. Barker reported again on May 20, 1986, as follows:
 
         
 
              Enclosed is a recent letter I sent to Mr. Teneyuque's 
 
              attorney.  I'm not sure what PTD is but if it refers to 
 
              permanent disability I would say there should be none.  
 
              The patient has not been seen by me since 10-28-85.  He 
 
              was originally seen by Dr. Hoenk, now retired, on 
 
              3-1-85 for his nasal fracture. (Ex. F)
 
         
 
              Dr. Barker made no reference to or expressed any familiarity 
 
         with the AMA Guides.
 
         
 
              Albert Zimmer, M.D., testified by deposition that he is a 
 
         board certified otolaryngologist who has practiced in ear, nose 
 
         and throat for 30 years (Ex. H, pp. 3 & 4).  He first saw 
 
         claimant on January 21, 1986, complaining primarily of pain in 
 
         the tip of his nose.  There was a scar two centimeters long on 
 
         the right side of his nose.  The nose was synunetrical and not 
 
         extremely crooked.  It looked different than it looked in 
 
         pictures taken prior to the injury.  The nose had a satisfactory 
 
         appearance after the injury but appeared flatter and less 
 
         protruded.  The nasal septum was irregular but did not block the 
 
         airway on either side.  Claimant described to the doctor that he 
 
         had a continuous pain like a burning sensation that was 
 
         accentuated by cold weather or by touch.  Simply touching his bed 
 
         sheet caused discomfort to his nose (Ex. H, pp. 6-8).
 
         
 
              Dr. Zimmer believed that there was damage to the cutaneous 
 
         nerves, small sensory nerves in the skin, from scar tissue 
 
         putting pressure or irritation on the nerve fibers (Ex. H, p. 8).  
 

 
         
 
         
 
         
 
         TENEYUQUE V. SIVYER STEEL CORP.
 
         Page   5
 
         
 
         
 
         The doctor said that his objective findings were the scar tissue 
 
         but he also said that he accepted and believed that claimant's 
 
         subjective symptoms were true because the pain was continuous, it 
 
         was located in the area of the injury and was made worse by touch 
 
         or cold (Ex. H, pp. 9 & 10).  The doctor acknowledged that 
 
         claimant's complaints could not be verified independently (Ex. H, 
 
         p. 24).  X-rays showed no evidence of fracture to the nose in the 
 
         nasal bones.  Subsequent x-rays of the sinuses disclosed no 
 
         infection, tumor or anything gross anatomically that would be 
 
         contributing to his symptom (Ex. H, p. 11).
 
         
 
              Dr. Zimmer acknowledged that claimant's case was unusual.  
 
         He had not encountered one like it before.  A more common 
 
         complaint would have been numbness and tingling because of the 
 
         interruption of the nerve pathways, but it is certainly 
 
         conceivable that in some instances pain could also occur (Ex. A, 
 
         p. 12).  The doctor said that he believed the patient's 
 
         complaints (Ex. H, pp. 9 & 12).  He said that the type of surgery 
 
         that claimant had and the type of pain he was feeling was 
 
         consistent with a blow to the nose (Ex. H, pp. 12 & 13).  He said 
 
         the injury was the cause of the pain (Ex. H, p. 17).  Additional 
 
         surgery would not correct but might only make it worse by causing 
 
         more scar tissue (Ex. H, p. 18).  Dr. Zimmer summarized his 
 
         opinion in a letter dated January 8, 1987 as follows:
 
         
 
              I saw Mr. Ramon Teneyuque for the first time on January 
 
              21, 1986, and he was most recently seen on December 9, 
 
              1986.  He gave a history of an accident in March of 
 
              1985.  He had reconstructive surgery performed for this 
 
              injury.  He has a persistent complaint of pain, 
 
              tenderness, and altered sensitivity to touch in the 
 
              nose.  This is much worse in cold weather.  His nasal 
 
              septum is irregular, but the airway is satisfactory.  
 
              His external nose is different from his pre-injury 
 
              appearance.  It is symmetrical and quite acceptable in 
 
              appearance.  There is some small fine scarring on the 
 
              right side of his nose.
 
         
 
              I feel that a 10% loss is a reasonable estimate, since 
 
              he will probably have pain and altered sensation in his 
 
              nose for the remainder of his life.  I feel that this 
 
              does constitute a permanent partial disability.  The 
 
              question of whether this is a 10% loss of his whole 
 
              body is difficult to answer, however I feel that 
 
              permanent persistent pain will affect ones attitude and 
 
              therefore would be considered a 10% loss of the whole 
 
              body.  Facial x-rays, including sinuses were normal, 
 
              and a copy of these are included.
 
              (Ex. I)
 
         
 
              Dr. Zimmer granted that the figure of 10 percent was just a 
 
         guess.  He described it as a reasonable approximation on his 
 
         part.  He acknowledged that he did not use the AMA Guides and 
 
         that he has never used them before (Ex. H, pp. 14-16).  Dr. 
 
         Zimmer said that the basis for his impairment rating was that 
 
         chronic pain decreases the enjoyment of life and causes a 
 
         distraction to activities which require concentration (Ex. H, p. 
 
         17).  Similarly, the pain would distract his concentration to do 
 
         his job (Ex. H, p. 25).
 

 
         
 
         
 
         
 
         TENEYUQUE V. SIVYER STEEL CORP.
 
         Page   6
 
         
 
         
 
         
 
              Dr. Zimmer conceded to defendants' counsel that Dr. Hoenk 
 
         has never mentioned a laceration of the nose in his notes (Ex. H, 
 
         p. 19).  Dr. Zimmer also admitted that a closed reduction, which 
 
         is what claimant received, means that the reconstructive surgery 
 
         did not involve any incision into the skin at all, but rather an 
 
         elevation of the depressed parts.  There is no suturing to be 
 
         done.  There was no specific repairing of a rent or laceration of 
 
         the nose (Ex. H, pp. 19 & 20).  Looking at the AMA Guides, Dr. 
 
         Zimmer granted that claimant did not have dyspnea or any of the 
 
         obstructions in Table 5 on page 160 that allow an impairment 
 
         rating for air passage defects (Ex. H, pp. 26-28; Ex. 6, p. 4).  
 
         Dr. Zimmer said he was looking at class one on page 159 which 
 
         made an allowance for visible scars and abnormal pigmentation, 
 
         but granted that claimant did not suffer any functional 
 
         impairment (Ex. H, pp. 29 & 30).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              Iowa Code section 85.34(2) t. & u. provide as follows:
 
         
 
                 t.  For permanent disfigurement of the face or head 
 
              which shall impair the future usefulness and earnings 
 
              of the employee in his occupation at,the time of 
 
              receiving the injury, weekly compensation, for such 
 
              period as may be determined by the industrial 
 
              commissioner according to the severity of the 
 
              disfigurement, but not to exceed one hundred fifty 
 
              weeks.
 
                 u.  In all cases of permanent partial disability 
 
              other than those hereinabove described or referred to 
 
              in paragraphs "a" through OtO hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
                 If it is determined that an injury has produced a 
 
              disability less than that specifically described in 
 
              said schedule, compensation shall be paid during the 
 
              lesser number of weeks of disability determined, as 
 
              will not exceed a total amount equal to the same 
 
              percentage proportion of said scheduled maximum 
 
              compensation.
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 

 
         
 
         
 
         
 
         TENEYUQUE V. SIVYER STEEL CORP.
 
         Page   7
 
         
 
         
 
         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).
 
         
 
              As to Iowa Code section 85.34(2) t., claimant did prove 
 
         there is a two centimeter scar on the right side of his nose.  He 
 
         did not prove that this scar was caused by this injury. ,Claimant 
 
         did not testify that this scar was specifically caused by this 
 
         injury.  The office notes and correspondence from Dr. Hoenk, the 
 
         treating physician and his associate and successor, Dr. Barker, 
 
         do not mention either a scar or laceration on the nose.  Closed 
 
         reduction did not involve incision, excision or suturing.
 
         
 
              Even assuming that claimant did receive the scar from this 
 
         injury, claimant did not demonstrate a disfigurement of the face 
 
         or head which will impair the future usefulness and earnings of 
 
         the employee in his occupation in which he was engaged at the 
 

 
         
 
         
 
         
 
         TENEYUQUE V. SIVYER STEEL CORP.
 
         Page   8
 
         
 
         
 
         time of receiving the injury or in most other occupations.  
 
         Claimant returned to the same job and has performed the same work 
 
         satisfactorily since March 11, 1985.  His pay is less but 
 
         claimant testified that this was due to a change in the rate for 
 
         piece work and not due to the injury.
 
         
 
              Even if the injury were found to be a cause of permanent 
 
         disability to the body as a whole under Iowa Code section 
 
         85.34(u), claimant would not be entitled to permanent partial 
 
         disability benefits because he has not demonstrated any loss of 
 
         earning capacity.  The briefness of his healing period, his 
 
         return to work at the same job for the same pay for his employer 
 
         of the last 14 years tends to negate any loss of earning 
 
         capacity, but on the contrary would indicate that claimant is 
 
         rather secure in his job.  No doctor has placed any restrictions 
 
         or limitations on claimant's performance of his regular job.  The 
 
         loss of earning capacity is a reduction in value of the general 
 
         earnings capacity of the individual rather than the precise loss 
 
         of wages or earnings in any specific operation.  Holmquist v. 
 
         Volkswagen of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) (100 
 
         A.L.R. 3d 143).  In this case it definitely appears that claimant 
 
         returned to his former employment without any loss of earnings or 
 
         employment status of any kind.  Mason v. Armour-Dial, Inc., I 
 
         Iowa Industrial Commissioner Report 227, 229 (1981).  There is no 
 
         showing that claimant is foreclosed from performing any other job 
 
         activity on account of this injury.  Michael v. Harrison County, 
 
         Thirty-Fourth Biennial Reports of the Industrial Commissioner 
 
         218, 220 (App. Decn. 1979).
 
         
 
               The only industrial disability factor that Dr. Zimmer 
 
         mentioned in his deposition was the fact that claimant's 
 
         concentration to do his work might be distracted by the pain.  
 
         However, the actual evidence is that claimant has been able to 
 
         perform his job satisfactorily, although with much difficulty in 
 
         spite of the pain.  The injury occurred on February 25, 1985 and 
 
         the hearing was held on February 19, 1988.  Therefore, claimant 
 
         has been performing his job satisfactorily for approximately 
 
         three years since the injury.
 
         
 
              In conclusion, it is found that claimant did not sustain the 
 
         burden of proof by a preponderance of the evidence that the 
 
         injury was the cause of permanent disability.  Claimant did not 
 
         demonstrate that he is entitled to benefits under either Iowa 
 
         Code section 85.34(2) (t.) or (u.) for either scheduled member or 
 
         industrial disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Based upon the evidence presented, the following findings of 
 
         fact are made:
 
         
 
              That claimant did not prove that the injury was the cause of 
 
         the scar on his nose or any other facial disfigurement.
 
         
 
              That claimant did prove that he suffers pain and discomfort 
 
         on the tip of his nose but he did not prove that the pain and 
 
         discomfort reduced his earning capacity.
 
         
 
              That Dr. Zimmer was not an authorized physician but instead 
 

 
         
 
         
 
         
 
         TENEYUQUE V. SIVYER STEEL CORP.
 
         Page   9
 
         
 
         
 
         was a physician of claimant's own choice.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of February 25, 
 
         1985 was the cause of any permanent disability.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is entitled to either 
 
         scheduled member or industrial disability benefits.
 
         
 
              That claimant did not prove that he was entitled to medical 
 
         benefits for the evaluation and treatment by Dr. Zimmer who 
 
         basically examined and evaluated claimant but did not treat the 
 
         condition in any measurable degree.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 15th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David A. Millage
 
         Attorney at Law
 
         1989 Spruce Hills Drive
 
         Bettendorf, Iowa 52722
 
         
 
         Mr. Larry D. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.40; 1803; 1803.1;
 
                                                    2500; 2907
 
                                                    Filed April 15, 1988
 
                                                    WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAMON TENEYUQUE,
 
         
 
              Claimant,
 
                                                   FILE NO. 789389
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         SIVYER STEEL CORP.,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
         
 
         1402.40; 1803, 1803.10
 
         
 
              Claimant received a severe blow to the nose at work and was 
 
         paid temporary total disability and received a closed reduction 
 
         of a depressed, displaced fracture.  Claimant failed to prove 
 
         slight scar on his nose was due to this injury or that he 
 
         otherwise was entitled to permanent partial disability either for 
 
         a scheduled member injury [Iowa Code section 85.34(2)(t)] or for 
 
         industrial disability [Iowa Code section 85.34(2)(u)].
 
         
 
         2500
 
         
 
              Claimant's medical expense was not authorized and was for 
 
         evaluation for trial rather than treatment and therefore was not 
 
         allowed.
 
         
 
         2907
 
         
 
              Costs assessed against claimant.