before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KEITH ANDERSON,     :
 
                      :
 
                 Claimant, :      File No. 789530
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            J. I. CASE COMPANY, :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed August 22, 1990, is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Francis Van Hooreweghe
 
            Mr. Don D. Thuline
 
            Attorneys at Law
 
            1718 8th Avenue
 
            P.O. Box 399
 
            Moline, Ilinois 61265
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Suite 102, Executive Square
 
            400 Main Street
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed September 27, 1991
 
                      BYRON K. ORTON
 
                      HJW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            KEITH ANDERSON,     :
 
                      :
 
                 Claimant, :      File No. 789530
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            J. I. CASE COMPANY, :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            22, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH ANDERSON,               :
 
                                          :
 
                 Claimant,                :         File No. 789530
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            J. I. CASE COMPANY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Keith Anderson, against his self-insured employer, 
 
            J. I. Case Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of an injury 
 
            sustained on March 12, 1985.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner at Davenport, Iowa on April 20, 1990.  A first 
 
            report of injury was filed on March 15, 1985.  The record in 
 
            this matter consists of the testimony of claimant as well as 
 
            of Helen Heath and G. Brian Paprocki, and of claimant's 
 
            exhibits 1 through 35 and joint exhibits 1 through 7.  
 
            Claimant filed a brief.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and the oral 
 
            stipulation of the parties at hearing, the parties 
 
            stipulated:  that claimant's rate of compensation is 
 
            $274.45; that medical costs were fair and reasonable for the 
 
            condition treated; that claimant did receive an injury which 
 
            arose out of and in the course of his employment and that a 
 
            causal relationship exists between claimant's injury and 
 
            certain temporary total/healing period and permanent partial 
 
            disability.  Apparently, the parties are agreeing that 
 
            claimant's injury caused disability to his right foot.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's injury and the disability by way of major 
 
            depressive disorder, sleep apnea, and low back pain;
 
            
 
                 2.  The nature and extent of any entitlement to 
 
            benefits;
 
            
 
                 3.  Whether claimant is an odd-lot employee under the 
 
            Guyton doctrine;
 
            
 
                 4.  Whether claimant is entitled to payment for certain 
 
            medical costs as related to his injury and disability and as 
 
            reasonable and necessary treatment for such; and,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 5.  Whether defendant is entitled to a credit under 
 
            section 85.38(2).
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is 38 years old and a high school graduate.  
 
            His school records, recent grade level testing by G. Brian 
 
            Paprocki, and his demeanor at hearing all suggest that he 
 
            functions at a relatively low level intellectually.
 
            
 
                 Claimant worked for the employer from October 14, 1971 
 
            through March 12, 1985, but for a series of intermittent 
 
            layoffs.  He worked primarily as a floor sweeper and 
 
            expediter, although he had two years of experience as a 
 
            forklift driver.
 
            
 
                 On March 11, 1985, claimant began work as a brake press 
 
            operator.  On March 12, 1985, a 900-pound die fell on his 
 
            foot.  Claimant sustained markedly comminuted fractures 
 
            about the right foot with dislocation of the fourth toe 
 
            metatarsal cuneiform joint, fractures of cuboid and fifth 
 
            metatarsal in addition to 1 and 2.  He underwent a 
 
            fasciotomy followed by internal fixation, open reduction of 
 
            the first and second toes with manipulative reduction of the 
 
            fifth toe metatarsal and reduction of dislocation of fourth 
 
            toe.  Ultimately, claimant's second and third toes were 
 
            amputated.  Claimant has a fused right foot consisting of a 
 
            great toe and a fourth and fifth toe.
 
            
 
                 Claimant walks with a cane.  He uses an orthopaedic 
 
            right shoe consisting of a rocker and a side brace.  
 
            Claimant has low back pain related to an altered gait 
 
            resulting from his injury.  Vernon P. Varner, M.D., a 
 
            board-certified psychiatrist, and Richard Neiman, M.D., a 
 
            board-certified neurologist both so opined.  No evidence of 
 
            permanent impairment related directly to the back pain was 
 
            produced, however.  Claimant has constant right foot and 
 
            ankle pain.  He has numbness in the big toe with 
 
            intermittent back pain if he stands for an extended period.  
 
            Claimant testified to right ankle and knee pain if he stands 
 
            for greater than one hour.  No medical evidence directly 
 
            relates that pain to his injury, however.  Claimant tires 
 
            easily.  He believes he cannot twist, push, pull, climb, 
 
            stoop, walk or carry a bucket of water.  No medical 
 
            restrictions on these activities exist, however.  He has 
 
            difficulty bending at the waist.  Claimant can drive up to 
 
            two hours, however.
 
            
 
                 Richard Neiman, M.D., a board-certified neurologist, 
 
            first saw claimant on November 19, 1987 with a diagnosis of 
 
            pain syndrome with partial injury to one of the peripheral 
 
            branches of the peroneal nerves producing hyperesthesia.  
 
            Osteoarthritic hypertrophic changes were apparent on x-ray 
 
            of claimant's right foot.  Dr. Neiman related these to his 
 
            initial injury.  Dr. Neiman believed that weight loss would 
 
            benefit claimant.  Claimant does not exercise as he did 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            prior to his injury.  He is more socially withdrawn and has 
 
            given up hunting and gun collecting.  He also keeps fewer 
 
            farm animals than he had prior to his injury.
 
            
 
                 Dr. Neiman had referred claimant to Dr. Varner for 
 
            primary treatment.  Dr. Varner diagnosed claimant has having 
 
            a major depressive disorder, secondary in part to pain and 
 
            interrupted sleep from a painful right ankle and foot 
 
            (October 17, 1988 report).  D. V. Domingo, M.D., of Moline 
 
            Psychiatric Associates, examined claimant for one hour on 
 
            January 4, 1989.  He diagnosed claimant as having an 
 
            adjustment disorder with depression, chronic (January 5, 
 
            1989 report).  Dr. Varner believed that claimant's pain 
 
            interfered with his sleep and led to depression and that 
 
            attempts to treat depression led to sedation with worsening 
 
            of claimant's sleep apnea (October 17, 1988 Dr. Varner 
 
            report).  Dr. Varner, in his deposition taken October 31, 
 
            1988, stated that claimant was much heavier at the time of 
 
            the deposition than when first seen.  Dr. Varner attributed 
 
            this to the medications claimant was taking.
 
            
 
                 Claimant takes Amitriptyline, Trilafon, and Clonazepam.  
 
            Amitriptyline and Clonazepam are known to increase appetite, 
 
            especially for carbohydrates.  With the exception of the 
 
            Amitriptyline, these drugs were prescribed near claimant's 
 
            March, 1988 hospitalization.  Claimant's Amitriptyline 
 
            dosage was significantly increased at that time.
 
            
 
                 Claimant is six feet tall and weighs 290 pounds.  He 
 
            has gained approximately 90 pounds since his injury date and 
 
            approximately 60 pounds since March 11, 1988 when he was 
 
            admitted to Mercy Hospital in Iowa City for treatment of 
 
            depression and pain.
 
            
 
                 Claimant was hospitalized at Mercy Hospital in Iowa 
 
            City, Iowa on March 11, 1988 for treatment of pain and 
 
            depression.  While hospitalized, claimant was diagnosed as 
 
            having a mixed type sleep apnea consisting of both 
 
            obstructive sleep apnea and central nervous system apnea.  
 
            Guy Ernest McFarland, M.D., a board-certified ear, nose and 
 
            throat specialist, first saw claimant on March 23, 1988 for 
 
            sleep difficulties.  On examination, claimant had a severely 
 
            deviated nasal septum and his palate or uvula was two to 
 
            three times the normal length.  Claimant also had tonsils.  
 
            Those conditions all produce nasal obstruction.  Claimant 
 
            had a larger than normal base of tongue, a condition that 
 
            can contribute to a decrease in airway size.  An EEG showed 
 
            mixed sleep apnea, that is, a central nervous system as well 
 
            as an obstructive component.  Surgery was performed which 
 
            enlarged the rear of claimant's throat by 100 percent.  
 
            Claimant subsequently underwent a tracheostomy as the size 
 
            of his tongue and surgical swelling prevented air exchange.  
 
            Dr. McFarland characterized the tracheostomy as more or less 
 
            permanent, although a long-term goal would be to extubate 
 
            claimant and have him resume breathing predominantly through 
 
            a normal passageway.  A post-operative sleep study on July 
 
            27, 1988 showed central obstructive mixed sleep apnea, but 
 
            improved over the preoperative study.  When Dr. McFarland 
 
            last saw claimant on December 8, 1988, claimant was sleeping 
 
            better and had no major complaints [related to his sleep 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            disorder].
 
            
 
                 Claimant's mother did not recall claimant snoring while 
 
            sleeping pre-injury.  She believed that, post-injury, 
 
            claimant had loud, raucous snoring.  Claimant last fell 
 
            asleep during the day in January, 1988.
 
            
 
                 Claimant's sleep apnea symptoms had decreased markedly 
 
            at his release from Mercy Hospital.  Claimant appeared much 
 
            more rested.  Nursing observations did not notice apneic 
 
            periods; no formal sleep studies were done at that time (Dr. 
 
            Varner discharge summary of April 11, 1988).
 
            
 
                 The absence of a pattern or chronic tardiness prior to 
 
            claimant's injury suggests that claimant had not had sleep 
 
            apnea prior to the injury (Dr. Varner deposition).  
 
            Claimant's peers would have known if he had sleep apnea 
 
            because typically he would have been dog-tired and had sat 
 
            down at work and fallen asleep at break (Dr. Varner 
 
            deposition).  No peers testified at hearing, however.
 
            
 
                 A sedentary activity rate and weight gain would change 
 
            body composition such as to aggravate or bring out a sleep 
 
            apnea problem.  Claimant's single status makes pre-injury 
 
            determination of sleep apnea more difficult since the 
 
            patient was not aware of his own sleep patterns.  Sleep 
 
            apnea once triggered tends to continue.  (Dr. McFarland 
 
            deposition)
 
            
 
                 Dr. Neiman believed that if claimant had not reported 
 
            snoring prior to his work injury, but snored after the work 
 
            injury, the injury was at least partially responsible for 
 
            claimant's development of sleep apnea.  Dr. Neiman believed 
 
            that snoring subsequent to a weight gain suggested a 
 
            relationship between the weight gain and sleep apnea.  (Dr. 
 
            Neiman deposition)
 
            
 
                 Peter S. Jerome, M.D., who is board-certified in 
 
            internal medicine, pulmonary medicine and critical care 
 
            medicine, reviewed claimant's medical records.  He did not 
 
            examine claimant.  Dr. Jerome's specialty of pulmonary 
 
            medicine includes sleep disorder diagnosis and treatment.  
 
            Dr. Jerome reported that a change in body weight can be a 
 
            consequence of sleep apnea and that an increase in body 
 
            weight can aggravate, or more rarely cause, sleep apnea.  
 
            Sleep apnea can lead to a sluggish person with a strong 
 
            tendency to gain weight.  Fat tissue deposited in the upper 
 
            airway in obese persons narrows the upper airway caliber.  
 
            Dr. Jerome opined that uvulopalotopharyngoplasty has a high 
 
            failure rate as a result of the multiple factors causing 
 
            obstructive and mixed sleep apnea.  He reported that the 
 
            procedure can at times aggravate sleep apnea function as a 
 
            result of the flaccid enlarged upper airway's loss of tone 
 
            post-surgery.  Dr. Jerome believed that consumption of 
 
            alcohol and ingestion of central nervous system depressants 
 
            [sic] were other factors that can aggravate sleep apnea.  He 
 
            reported that alcohol decreases the brain's ability to 
 
            maintain upper airway patency and believed 12 beers per day 
 
            could have that effect.  He characterized Klonopin as a drug 
 
            which decreases brain signals and as a drug used to prevent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            alcohol withdrawal syndrome.  Claimant apparently showed no 
 
            signs of alcohol withdrawal after ceasing drinking while 
 
            hospitalized at Mercy.  Dr. Jerome felt that the subjective 
 
            observations of Dr. Varner as to claimant's sleep apnea 
 
            decreasing post-surgery should be given less weight as it 
 
            was based on hospital observation and not on formal 
 
            all-night polysomnogram.  Dr. Jerome believed that 
 
            claimant's sleep apnea was caused by multiple factors, the 
 
            most prominent being his obesity, the anatomy of his upper 
 
            airway and his concomitant use of possible alcohol products 
 
            and central nervous system depressants.  (Dr. Jerome 
 
            deposition)
 
            
 
                 Dr. McFarland believed that an elevated blood alcohol 
 
            produces deeper sleep levels that affect the body's ability 
 
            to monitor breathing and respond at appropriate times.  (Dr. 
 
            McFarland deposition)
 
            
 
                 Dr. Neiman reported a known relationship between 
 
            drinking alcohol and sleep apnea in that alcohol can 
 
            suppress the respiratory drive and can cause hytrophy [sic] 
 
            in tissue at the base of the throat.  He reported that 
 
            alcohol generally aggravates rather than causes sleep apnea.  
 
            Dr. Neiman believed that claimant drank two beers per day 
 
            during the week and four to six beers on Friday and Saturday 
 
            nights.  Dr. Neiman believed it was hard for a single 
 
            individual who lived alone to know if he snores or if he had 
 
            mild sleep apnea, but for possible daytime sleepiness.  (Dr. 
 
            Neiman deposition)
 
            
 
                 It is specifically found that claimant's sleep apnea is 
 
            produced by a variety of factors including his body size, 
 
            his nose and throat composition and his alcohol consumption.  
 
            Whether claimant had sleep apnea prior to his injury cannot 
 
            be ascertained, given his single status and the absence of 
 
            testimony from disinterested peers concerning his pre-injury 
 
            condition.  Claimant's weight gain subsequent to his injury 
 
            was not a primary factor in claimant's development of sleep 
 
            apnea as claimant had gained only approximately 30 pounds 
 
            when his sleep apnea was diagnosed in March, 1988.  His most 
 
            significant weight gain occurred subsequent to diagnosis and 
 
            treatment of the sleep apnea.  Claimant's alcohol 
 
            consumption subsequent to his injury was not a primary 
 
            factor in the development of his sleep apnea as claimant's 
 
            alcohol consumption did not increase subsequent to his 
 
            injury.  Medications prescribed to treat claimant's injury 
 
            related to pain and his depression likely did not play a 
 
            significant role in the development of his sleep apnea as 
 
            the apnea apparently was diagnosed and treated prior to 
 
            claimant receiving significant dosages of those medications.  
 
            Regardless of the source of claimant's sleep apnea, claimant 
 
            has had no significant symptoms of the condition since at 
 
            least July, 1988 given his permanent tracheostomy.
 
            
 
                 Dr. Varner opined that claimant's depression began long 
 
            before March 11, 1988 in that claimant was depressed while 
 
            hospitalized and developed sleep apnea while hospitalized 
 
            [apparently in March, 1988].  The doctor stated that pain, 
 
            sleep apnea and sleep interruption would have made claimant 
 
            a very high risk for depression within a matter of weeks 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            after the injury, that is, that in September, 1985 claimant 
 
            would have been well into a serious depression (June 8, 1989 
 
            report of Dr. Varner).  The opinion is given less weight 
 
            because it is not established that claimant had sleep apnea 
 
            in September, 1985 and because Dr. Varner's statements 
 
            concerning the presence of sleep apnea at that time appear 
 
            to directly contradict Dr. Varner's other statements 
 
            relative to the development of claimant's sleep apnea.
 
            
 
                 On January 30, 1989, per Dr. Varner, claimant was in 
 
            psychotherapy for delayed reaction as the result of his loss 
 
            of function as well as the loss of "an incredible number of 
 
            primary people in his life," that is, his father, a 
 
            grandmother and grandfather, a favorite uncle, a second 
 
            grandmother, a neighbor, and a sister-in-law who had 
 
            developed thyroid cancer, all losses occurring within two 
 
            years of January 30, 1989.
 
            
 
                 Claimant's ability to do sustained work is interrupted 
 
            by constantly feeling overwhelmed by pain.  Claimant is 
 
            socially markedly inhibited and withdrawn and has very few 
 
            if any friends.  He has very limited social skills, in part 
 
            related to past alcohol abuse, and now related to frank 
 
            embarrassment from anyone knowing about his permanent 
 
            tracheostomy and with "seeing my foot."  (February 11, 1989 
 
            Dr. Varner report)  Absent a dramatic change in claimant's 
 
            ability to use his right foot and limb and return to work 
 
            with a social life centered around work, claimant will not 
 
            be able to function sufficiently without continued outside 
 
            support of psychotherapy on a life-long basis (March 15, 
 
            1990 Dr. Varner report).
 
            
 
                 A variety of factors, including claimant's work injury; 
 
            significant family losses; and, his lack of social skills 
 
            and social isolation produced his depression.
 
            
 
                 Claimant's exhibit 30 is a collection of medical 
 
            statements which claimant's exhibit list characterizes as 
 
            current unpaid medical bills of claimant.  The prehearing 
 
            report did not contain an itemized list of all medical 
 
            expenses for which claimant is seeking reimbursement as 
 
            required by subparagraph 3 of paragraph 10 of the hearing 
 
            assignment order.  It is not possible from the documents 
 
            submitted to ascertain the exact amounts for which claimant 
 
            is seeking reimbursement.
 
            
 
                                conclusions of law
 
            
 
                 Our first concern is whether a causal relationship 
 
            exists between claimant's injury and disability by way of 
 
            major depressive disorder, sleep apnea, and low back pain.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 12, 
 
            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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 The work incident or activity need not be the sole 
 
            proximate cause of the injury, if the injury is directly 
 
            traceable to it.  Holmes v. Bruce Motor Freight, Inc., 215 
 
            N.W.2d 296, 297 (Iowa 1974).
 
            
 
                 A cause is proximate if it is a substantial factor in 
 
            bring about the result.  It need be only one cause of the 
 
            result; it need not be the only cause.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 As noted above, the evidence that claimant's sleep 
 
            apnea relates to his work injury is at best inclusive.  
 
            Likewise, claimant has not made an appropriate showing that 
 
            the sleep apnea is a preexisting condition that was 
 
            aggravated by the work injury.  Claimant has shown that his 
 
            major depressive disorder is in part related to the 
 
            consequences of his work injury.  Similarly, the record 
 
            demonstrates that claimant has low back pain related to an 
 
            altered gait, which low back pain therefore relates back to 
 
            his work injury.  Unfortunately, the record does not in any 
 
            way demonstrate the nature or extent of claimant's low back 
 
            pain or any impairment related thereto.  Therefore, it is 
 
            concluded that claimant has not established a causal 
 
            relationship between his work injury and his sleep apnea; it 
 
            is further concluded that claimant has established a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            relationship between his major depressive disorder and his 
 
            work injury and a relationship between his low back pain and 
 
            his work injury.
 
            
 
                 Our next concern is the nature and extent of claimant's 
 
            disability.
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).
 
            
 
                 That a worker sustaining one of the injuries for which 
 
            specific compensation is provided under the statute might, 
 
            because of such injury, be unable to resume employment and 
 
            because of his lack of education or experience or physical 
 
            strength or ability, might be unable to obtain other 
 
            employment, does not entitle him to be classed as tot     
 
                 Even though claimant has shown a psychological 
 
            impairment on account of his work injury, he cannot recover 
 
            benefits for industrial disability since his injury was to a 
 
            scheduled member and not to the body as a whole.  Claimant's 
 
            psychological problems affect his earning capacity perhaps 
 
            significantly.  However, the current law of this agency 
 
            holds that he has already been compensated for any reduction 
 
            in his earning capacity through the schedule.  The benefits 
 
            under section 85.34, The Code, contemplate compensation for 
 
            any effect on the claimant's earning capacity caused by 
 
            psychological problems stemming from an injury to a 
 
            scheduled member.  See, Schell v. Central Engineering Co., 
 
            232 Iowa 424, 4 N.W.2d 339 (1942); Pilcher v. Penick & Ford, 
 
            file number 618597 (App. Decn., October 21, 1987).
 
            
 
                 For reasons set forth in the above findings of fact, 
 
            claimant has not shown a causal relationship between his 
 
            sleep apnea and his injury.  Therefore, that condition 
 
            cannot form the basis for extending claimant's disability 
 
            beyond that provided in the schedule for loss or loss of use 
 
            of a foot.
 
            
 
                 Likewise, claimant is not entitled to industrial 
 
            disability under the current law of this agency as reflected 
 
            in the legal proposition cited above.  Claimant's pain, but 
 
            for his low back pain, would appear to be specifically 
 
            related to his scheduled member loss and, therefore, also 
 
            cannot form the basis for any award of industrial 
 
            disability.
 
            
 
                 We are left then with claimant's low back condition 
 
            which both Drs. Varner and Neiman relate to his altered 
 
            gait.  Simple common sense supports the doctors' conclusions 
 
            in that an alteration of gait will generally have some 
 
            effect on the individual's overall sense of well being.  The 
 
            question then is whether claimant's low back pain of itself 
 
            represents a significant body as a whole handicap entitling 
 
            him to industrial disability.  Unfortunately, this record is 
 
            devoid of evidence suggesting such.  No permanent partial 
 
            impairment ratings are available as regards claimant's low 
 
            back condition.  No restrictions have been placed as regards 
 
            claimant's low back condition.  No evidence of how the low 
 
            back pain alters claimant's lifestyle was presented.  In the 
 
            absence of such, we cannot find that the low back pain is 
 
            significantly disabling in and of itself such that claimant 
 
            is entitled to an industrial loss award on that basis alone.
 
            
 
                 As claimant has not established any condition entitling 
 
            him to compensation beyond the schedule, claimant's 
 
            permanent partial disability is limited to that which 
 
            claimant would be entitled to under the schedule for his 
 
            loss of use of his foot.  Evidence of that amount was not 
 
            presented on this record.  In the prehearing report, the 
 
            parties stipulated that compensation payments to claimant 
 
            are ongoing.  Defendant, of course, is obligated to continue 
 
            such until such time as claimant has been fully compensated 
 
            for his loss or loss of use of his foot as reflected in the 
 
            best available medical evidence regarding such.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 The parties also dispute the extent of claimant's 
 
            entitlement to temporary total disability or healing period 
 
            benefits, as well as the commencement date for his 
 
            permanency.  Again, it is noted that the parties have 
 
            presented virtually no evidence or medical testimony 
 
            regarding when claimant was assigned a permanency rating or 
 
            other indication that claimant's condition had reached the 
 
            maximum level of improvement.
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Co., Vol. 
 
            2-1, State of Iowa Industrial Commissioner Decisions 485 
 
            (1984).
 
            
 
                 Continuing to receive medical care which is maintenance 
 
            in nature does not extend the healing period beyond the 
 
            point where claimant has actually stopped improving.  
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            App. 1981);  Derochie v. City of Sioux City, II Iowa 
 
            Industrial Commissioner Report 112 (1982) (District Court 
 
            Appeal, remanded for settlement).  Likewise, where 
 
            claimant's condition will not improve from the start, but 
 
            will be aggravated by further physical exertion, claimant is 
 
            not entitled to healing period benefits as no further 
 
            improvement of his condition was anticipated.  Armstrong 
 
            Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).
 
            
 
                 "Permanent" means for an indefinite and undeterminable 
 
            period.  Wallace v. Brotherhood of Locomotive Firemen and 
 
            Enginemen, 230 Iowa 1127, 1130, 300 N.W. 322, 324 (1941), 
 
            citing Garen v. New England Mutual Life Ins., 218 Iowa 1094, 
 
            1104, 254 N.W. 287, 292 (1934).
 
            
 
                 Claimant obviously was not significantly improved from 
 
            the sequelae of his injury when Dr. Neiman first saw him in 
 
            November, 1987.  Also, claimant was not significantly 
 
            improved when hospitalized in March, 1988.  As of January, 
 
            1989, Dr. Varner had prescribed psychotherapy, related in 
 
            part to claimant's loss of use and loss of function.  Hence, 
 
            it cannot be said that claimant was at maximum medical 
 
            healing at that time.  As of March 15, 1990, Dr. Varner 
 
            reported that claimant would not likely be able to function 
 
            sufficiently without continued outside psychotherapeutic 
 
            support throughout his life.  From such, it is concluded 
 
            that claimant's condition as of that date had reached a 
 
            permanent state in that further improvement could not be 
 
            anticipated.  Therefore, it is concluded that claimant is 
 
            entitled to healing period benefits through March 15, 1990.  
 
            It is further concluded that claimant is entitled to 
 
            permanent partial disability benefits at the appropriate 
 
            rate and for the appropriate number of weeks for the loss of 
 
            use of his foot commencing March 16, 1990.
 
            
 
                 As claimant has not established an entitlement to 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            industrial disability, we need not consider whether claimant 
 
            is an odd-lot employee under the Guyton doctrine.  We note 
 
            in passing, however, that it does not appear that sufficient 
 
            steps have been taken relative to rehabilitation of 
 
            claimant.  Mr. Paprocki, in his testimony, did suggest that 
 
            claimant could function in a sheltered workshop environment.  
 
            Such an environment might well meet those social needs of 
 
            claimant about which Dr. Varner has expressed concern.  
 
            Under those circumstances, it appears that reasonable effort 
 
            to consider rehabilitation for claimant through that avenue 
 
            should have been made before claimant could fairly be 
 
            determined to be an odd-lot employee.
 
            
 
                 We reach the question of whether claimant is entitled 
 
            to payment for certain medical costs as related to his 
 
            injury and disability and as reasonable and necessary 
 
            treatment for such.
 
            
 
                 Under section 85.27, defendant is liable for medical 
 
            costs related to reasonable and necessary treatment of a 
 
            compensable injury.  As noted, claimant has not shown that 
 
            his sleep apnea relates to his work injury.  Therefore, 
 
            defendant is not liable for costs related to treatment of 
 
            that condition.  As noted, claimant has shown that his 
 
            depression is at least in part proximately caused by his 
 
            loss of use of his right foot.  Therefore, defendant is 
 
            liable for costs related to treatment of claimant's 
 
            depression.  Likewise, claimant's pain relates back to his 
 
            loss of use of his foot and treatment of his pain condition 
 
            is a reasonable and necessary medical cost for which 
 
            defendant is liable.  As noted in the above findings of 
 
            fact, it is impossible from the medical costs submitted to 
 
            determine what costs relate to treatment of what condition 
 
            or what costs claimant is actually seeking to be paid.  We 
 
            note that this represents a serious violation of the hearing 
 
            assignment order filed in this matter.  The parties are 
 
            directed to work together to determine which costs relate to 
 
            treatment of claimant's loss of use of his right foot, of 
 
            his pain, and of his psychiatric disorder.  Defendant is 
 
            liable for such costs.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant pay claimant healing period benefits from the 
 
            date of his injury through March 15, 1990 at the stipulated 
 
            rate of two hundred seventy-four and 45/100 dollars 
 
            ($274.45) per week.
 
            
 
                 Defendant pay claimant permanent partial disability 
 
            benefits for the appropriate number of weeks to compensate 
 
            for his loss or loss of use of his right foot at the 
 
            stipulated rate of two hundred seventy-four and 45/100 
 
            dollars ($274.45) per week.
 
            
 
                 Defendant pay claimant medical expenses actually 
 
            related to his loss of use of his right foot, his pain 
 
            related to loss of use of his right foot, and his depressive 
 
            disorder.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Defendant pay any accrued amounts in a lump sum.
 
            
 
                 Defendant pay interest if any be due pursuant to 
 
            section 85.30 as amended.
 
            
 
                 Defendant pay costs pursuant to Division of Industrial 
 
            Services Rule 343-4.33.
 
            
 
                 Defendant file claim activity reports as requested by 
 
            this agency pursuant to Division of Industrial Services Rule 
 
            343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Francis Van Hooreweghe
 
            Mr. Don D. Thuline
 
            Attorneys at Law
 
            1718 8th Avenue
 
            P.O. Box 399
 
            Moline, Illinois  61265
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Suite 102, Executive Square
 
            400 Main Street
 
            Davenport, Iowa  52801
 
            
 
            
 
            
 
 
            
 
 
 
                                               1108.20, 1108.50, 1802
 
                                               1803, 1803.1
 
                                               Filed August 22, 1990
 
                                               HELENJEAN WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH ANDERSON,               :
 
                                          :
 
                 Claimant,                :         File No. 789530
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            J. I. CASE COMPANY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1108.20, 1108.50, 1802, 1803, 1803.1
 
            
 
                 Claimant did not establish that sleep apnea condition 
 
            was the result of an injury which had produced amputation of 
 
            the second and third toes of the right foot where the 
 
            evidence was inconclusive as to whether claimant had had 
 
            sleep apnea prior to the injury; where the evidence did not 
 
            show that claimant's alcohol consumption had increased 
 
            subsequent to the injury; and, where the evidence did not 
 
            show that claimant's sleep apnea condition came on after 
 
            claimant had gained a significant amount of weight or after 
 
            significant amounts of prescription drugs which might have 
 
            contributed to the condition were administered.
 
            
 
                 Claimant did show that the work injury was a 
 
            substantial factor in his development of psychological 
 
            disorder.  Claimant was denied industrial disability on the 
 
            basis of his psychological condition pursuant to agency 
 
            precedent as regards psychological injury subsequent to a 
 
            scheduled loss.
 
            
 
                 Claimant's physicians indicated that claimant's fused 
 
            foot had resulted in an altered gait which produced back 
 
            pain.  Physicians apparently did not give any permanency 
 
            rating relative to the back pain and did not impose any 
 
            restrictions related to the back pain.  Held that in the 
 
            absence of permanency ratings or restrictions related to the 
 
            back pain, it could not be determined that the back pain was 
 
            a significant condition such that claimant's scheduled loss 
 
            became a body as a whole injury.
 
            
 
                 The record contained little evidence as to when 
 
            claimant reached maximum medical improvement.  In March of 
 
            1990, claimant's treating physician opined that claimant 
 
            would need psychotherapy throughout his lifetime on account 
 
            of his continuing problems subsequent to his injury.  Held 
 
            that that opinion established a permanent condition in that 
 
            claimant's condition would not improve significantly 
 
            subsequent to that date.  Healing period was awarded on and 
 
            through that date.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JEAN WAMSLEY,
 
         N/K/A JEAN KENNE,
 
         
 
              Claimant,                             File No. 789563
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         K-MART CORPORATION,                        D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Jean Wamsley, 
 
         now known as Jean Kenne, against K-Mart Corporation, her 
 
         self-insured former employer.
 
         
 
              The case was heard at Fort Dodge, Iowa on July 1, 1987 and 
 
         was fully submitted upon conclusion of the hearing.  The record 
 
         in the proceeding consists of testimony from claimant, June 
 
         Hageness and Donald Kenne.  The record also contains claimant's 
 
         exhibits 1, 2 and 3.
 
         
 
                                      ISSUES
 
         
 
              It was stipulated that claimant sustained injury which arose 
 
         out of and in the course of her employment on March 8, 1985, that 
 
         her rate of compensation is $124.38 per week and that she had 
 
         been paid 82 weeks of compensation at the correct rate prior to 
 
         hearing.  The issues in the case are determination of claimant's 
 
         entitlement to compensation for healing period and determination 
 
         of her entitlement to compensation for permanent disability.  It 
 
         was stipulated that the payments of weekly compensation that have 
 
         been paid were ended on October 4, 1986.
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
         All evidence received at the hearing was considered when deciding 
 
         the case even though it may not necessarily be referred to in 
 
         this decision.
 
         
 
              Jean Wamsley, now known as Jean Kenne, is a 63-year-old lady 
 
         who has married since the date of her injury.  She stated that 
 
         her husband is age 71 and has been retired since 1982.  Claimant 
 
         has two adult children.  Her daughter lives in Cumberland, 
 
         Maryland and her son lives in Jacksonville, Florida.
 
              Claimant is a 1940 high school graduate, but has no other 
 
         formal education.  She is not currently employed and now lives 
 
         in Cumberland, Maryland.  In the past, claimant has worked as a 
 
         bookkeeper, a bank teller, a billing clerk, a telephone 
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page   2
 
         
 
         
 
         operator, a waitress, a receptionist, a cashier in a cafeteria 
 
         and a retail sales clerk.
 
         
 
              Claimant commenced employment with K-Mart Corporation in 
 
         Fort Dodge, Iowa in September, 1978.  She has worked in several 
 
         different departments.  In particular, she worked in the 
 
         jewelry and camera department for three years.  She worked on 
 
         check-outs for two years.  Claimant was assigned to the 
 
         lay-away department in mid-1983 and was working in that 
 
         department at the time of her injury.  Claimant testified that 
 
         her duties involved handling boxes or bags with the items which 
 
         were being placed into or out of lay-away.  She stated that her 
 
         activities could include carrying the articles up steps to the 
 
         storage area.  She stated that some of the items she handled 
 
         were heavy, such as microwave ovens.  She related that, 
 
         usually, there was only one person working in the department, 
 
         but that she could call for assistance for any items which she 
 
         was unable to handle.
 
         
 
              Claimant testified that she had no difficulty with her 
 
         back while working in the lay-away department until March 8, 
 
         1985.  On cross-examination, claimant stated she could remember 
 
         only one hospitalization for back problems prior to the injury 
 
         now under consideration.  She did not deny, however, having an 
 
         acute lumbar strain in 1982 or being hospitalized for low back 
 
         problems three times during the 1980 through 1982 time range.
 
         
 
              Claimant related that, on March 8, 1985, she experienced 
 
         stinging pains in the front of her legs at approximately 3:30 
 
         or 4:00 p.m., but that they went away and that she worked until 
 
         6:00 p.m.  She related that March 8, 1985 was a Friday and 
 
         that, after work, she did nothing strenuous.  She stated that, 
 
         on Saturday, she felt okay and did not do much.  She stated 
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page   3
 
         
 
         
 
         that Sunday morning she found herself in excruciating pain on 
 
         the left side of her body and was unable to get out of bed.  
 
         She phoned her daughter for assistance and went to the hospital 
 
         for medical care.  She was given medication and sent home, but, 
 
         on Monday, her condition had worsened and she was 
 
         hospitalized.
 
         
 
              Claimant testified that, during the period of 
 
         approximately ten days while she was hospitalized, she received 
 
         therapy, but felt no better when discharged.
 
         
 
              Claimant testified that she was referred to John T. 
 
         Bakody, M.D., a neurosurgeon.  Claimant stated that, after 
 
         tests had been conducted, Dr. Bakody told her that she did not 
 
         have a ruptured disc and that he would not perform surgery.
 
         
 
              Claimant continued to treat with Dr. Bakody, but related 
 
         that he was unable to find a cause for her pain and suggested 
 
         that she be seen at the Mayo Clinic.
 
         
 
              Claimant went to the Mayo Clinic on June 24, 1985 where 
 
         extensive tests were performed.  Claimant related that she was 
 
         given steroids which provided some temporary relief and that 
 
         treatment with a Hubbard tank also provided temporary relief.  
 
         She stated that the exercises which were recommended caused too 
 
         much pain for her to perform them.
 
         
 
              Claimant testified that she was released and returned home 
 
         where she resumed care under the direction of Roy M. 
 
         Hutchinson, M.D., and that she has not been released to return 
 
         to work by any of the physicians in the Midwest who have 
 
         treated her.
 
         
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page   4
 
         
 
         
 
              Claimant testified that she moved out of Iowa in July, 
 
         1986, going first to Burnsville, North Carolina, and then to 
 
         Maryland in 1987.  She has not returned to work at any 
 
         location.
 
         
 
              Claimant testified that she received a letter from the 
 
         K-Mart Corporation in October, 1986 which informed her that her 
 
         employment had been terminated because she had left the state 
 
         of Iowa.
 
         
 
              Claimant testified that she desires to return to work, but 
 
         does not feel she could do so and has not looked for 
 
         employment.  She testified that she likes to work with people 
 
         and that she also needs the money.  She related she had planned 
 
         on working until age 70.
 
         
 
              Claimant testified that she has limitations which make her 
 
         unable to operate a vacuum cleaner.  She stated that she climbs 
 
         stairs one step at a time and that washing dishes drives her 
 
         crazy.  She stated that she is unable to sit for longer than 
 
         approximately 20 minutes in a straight-back chair.  She related 
 
         that she spends her days reading, knitting and painting.
 
         
 
              While in North Carolina, claimant saw E. Stanley Willett, 
 
         M.D., an orthopaedic surgeon.  Claimant related that Dr. 
 
         Willett advised her she could work four hours per day if she 
 
         was able to sit and to stand as she felt the need and that she 
 
         should have a 20-pound lifting limit.
 
         
 
              Claimant stated that, in Maryland, she was seen by W. C. 
 
         Spiggle, M.D.  Claimant related that Dr. Spiggle told her she 
 
         had a herniated disc and should have surgery.  Claimant stated 
 
         that she does not want to have surgery at the current time, but 
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page   5
 
         
 
         
 
         that she may if her pain worsens.  She felt that the pain was 
 
         worse at the time of hearing than it had been in March, 1985.
 
         
 
              June Hageness is an evaluator at Iowa Central Community 
 
         College where she interviews and tests applicants for their 
 
         vocational aptitudes.  Hageness evaluated claimant and 
 
         indicated that claimant appeared to be uncomfortable when 
 
         performing a peg board test and that she also appeared to be 
 
         anxious about the testing.  Hageness indicated that claimantOs 
 
         test results showed her reading tO be at the beginning of the 
 
         eleventh grade level and her math to be at the end of the 
 
         seventh grade level.  Hageness felt that claimant's evaluation 
 
         showed that claimant would have a better chance of success at 
 
         jobs she could learn from on-the-job training rather than from 
 
         formal education.  Hageness indicated that claimant's aptitude 
 
         scores were sufficiently low that they did not indicate the 
 
         ability to perform some of the jobs claimant has actually held 
 
         in the past.  Hageness indicated that claimant's expressed 
 
         interest had been in either retiring or in obtaining part-time 
 
         work.  Hageness did not present any wage level survey 
 
         information, but indicated that some of the jobs which appeared 
 
         to be suitable for claimant would pay a wage that would 
 
         probably be less than what claimant had earned at K-mart.
 
         
 
              Donald Kenne testified that he and claimant drove to Fort 
 
         Dodge from the East, a distance of approximately 800 miles, and 
 
         that they made the trip in 15 hours.  Donald Kenne indicated 
 
         that claimant was uncomfortable from sitting for so long and 
 
         that he was also uncomfortable.  He indicated that claimant did 
 
         some of the driving and that they stopped at rest areas during 
 
         the trip.
 
         
 
              Claimant has been thoroughly evaluated and examined by a 
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page   6
 
         
 
         
 
         number of physicians.  Drs. Hutchinson and Spiggle have 
 
         indicated that claimant has a herniated intervertebral disc 
 
         (exhibit 1-1; exhibit 3).  Dr. Bakody found her to have some 
 
         traumatic myofascitis (exhibit 1-14).  Dr. Willett felt that 
 
         she had preexisting degenerative arthritis which was aggravated 
 
         by her injury (exhibit 1-2).  At the Mayo Clinic, it was 
 
         concluded that she had bilateral chronic L5 radiculopathies, 
 
         most prominent on the left, but that there was no satisfactory 
 
         explanation for the pain which she described (exhibit 1-16).  
 
         Dr. Hutchinson indicated that claimant had reached her maximum 
 
         healing period by May 19, 1986 (exhibit 3).  When Dr. Willett 
 
         examined her on September 29, 1986, he felt that she had 
 
         already reached maximum medical improvement (exhibit 1-2; 
 
         1-3).
 
         
 
              Dr. Willett indicated that claimant had a five percent 
 
         impairment of her back (exhibit 1-2).  He suggested the 
 
         following physical restrictions: No lifting of more than 20 
 
         pounds, no repetitive bending or stooping and a job that would 
 
         permit claimant to change from sitting to standing positions as 
 
         she felt the need (exhibit 1-2).  Dr. Hutchinson felt that 
 
         claimant would not be able to return to work and that her 
 
         physical activities should be restricted to lifting no more 
 
         than 10 pounds.  He indicated that she would have difficulty if 
 
         she was called upon to sit, stand or walk for prolonged periods 
 
         (exhibit 3).
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 8, 1985 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 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).
 
         
 
              However, expert medical evidence must be considered with all 
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page   7
 
         
 
         
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant complained of the onset of pain, sought immediate 
 
         medical attention and has continued under medical care.  Dr. 
 
         Willett, in his report of December 2, 1987, indicated that 
 
         claimant's condition was preexisting degenerative arthritis that 
 
         had been aggravated by her injury.  The medical history that 
 
         claimant has consistently given indicates an onset of symptoms 
 
         while lifting a microwave oven at work on Friday, March 8.  None 
 
         of the physicians have indicated that claimant's activities at 
 
         work on March 8, 1985 were not a cause of her low back problems.  
 
         It is therefore found and concluded that the injury claimant 
 
         sustained on March 8, 1985 was a proximate cause of the 
 
         disability which she has experienced arising from the condition 
 
         of her low back.  It is also found that claimant had preexisting 
 
         spurs and degenerative disc disease in her spine, but diagnostic 
 
         tests and recent studies have failed to demonstrate significant 
 
         abnormalities in claimant's low back area (exhibit 1-2; 1-8; 1-9; 
 
         1-11; 1-16; 1-32; 1-33; and, 1-37).  Only Dr. Spiggle found any 
 
         abnormality (exhibit 1-1).  Claimant had a history of prior back 
 
         problems.  It nevertheless appears that the injury of March 8, 
 
         1985 was of sufficient severity to cause claimant to seek medical 
 
         treatment and that she has some residual limitations as a result 
 
         of that injury.
 
         
 
              Claimant is entitled to recover compensation for healing 
 
         period under the provisions of section 85.34(l).  The healing 
 
         period ended at the time she attained maximum medical 
 
         improvement.  Dr. Hutchinson made such a determination on May 19, 
 
         1986 as shown in exhibit 3 and his assessment is accepted as 
 
         correct.  Claimant's healing period therefore commences on 
 
         Sunday, March 10, 1985, the first day where she experienced any 
 
         disability, and it ends on May 19, 1986, a period of 62 2/7 
 
         weeks.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It has 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.O
 
         
 
              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 
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page   8
 
         
 
         
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 , 
 
         257 (1963 ).
 
         
 
              Claimant's degree of permanent disability should be 
 
         compensated under the provisions of section 85.34(2)(u). 
 
         Compensation benefits are geared to weekly wage loss.  It is not 
 
         inconsistent to generally state that workers, even if not 
 
         disabled, typically, though not exclusively, retire at some point 
 
         between the ages of 60 and 75.  The fact that a worker is in or 
 
         approaching typical retirement age may be considered as one of 
 
         the factors in determining industrial disability.  Brecke v. 
 
         Turner-Busch, Inc., 34th Biennial Report 34 (App. Decn. 1979).
 
         
 
              In this case, claimant was gainfully employed at K-Mart and 
 
         had been employed for several years.  Subsequent to the injury, 
 
         she married.  She now lives in Cumberland, Maryland.  Her 
 
         daughter has likewise moved to Cumberland, Maryland since 
 
         claimant's injury.  Claimant appears to be living what could be 
 
         characterized as a typical life for a retired person.  Her 
 
         husband is also retired.  When claimant spoke with June Hageness 
 
         regarding reentering the job market, her expressed interests were 
 
         part-time work or retirement.  Her physical restrictions as 
 
         indicated by Drs. Hutchinson and Willett are substantial.  It 
 
         appears, however, that those restrictions were imposed more as a 
 
         result of claimant's description of her problems to the 
 
         physicians than as a result of any definable physical 
 
         abnormalities that the doctors were able to identify.  Claimant's 
 
         appearance and demeanor were observed as she testified.  
 
         Claimant's complaints regarding the severity of her pain and 
 
         discomfort are not corroborated by objective medical evidence.  
 
         Her ability to drive from Maryland to the state of Iowa in 15 
 
         hours, without stopping overnight, is not corroborative with her 
 
         complaints.  When all the material factors of industrial 
 
         disability are considered, it is determined that claimant 
 
         sustained a 15% permanent partial disability as a result of the 
 
         injury she sustained on March 8, 1985.
 
         
 
              Claimant urged that she is permanently and totally disabled 
 
         under the odd-lot doctrine as defined by the Iowa-Supreme Court 
 
         in the case Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
         1985).  She has not, however, made a showing that she has made 
 
         bona fide efforts to return to gainful employment and has, 
 
         therefore, failed to make a prima facie showing of permanent 
 
         total disability under the odd-lot doctrine.  Emshoff v. 
 
         Petroleum Transportation Services, (App. Decn. March 31, 1987).  
 
         Claimant has no physical abnormalities that have been identified 
 
         by the medical practitioners, as contrasted from her complaints, 
 
         which make a prima facie case for total disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant injured her back on March 8, 1985 while 
 
         performing lifting in the lay-away department of the K-Mart store 
 
         at Fort Dodge, Iowa.
 
         
 
              2.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that 
 
         she performed at the time of injury from March 10, 1985 until May 
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page   9
 
         
 
         
 
         19, 1986 when she reached the point that it was medically 
 
         indicated that further significant improvement from the injury 
 
         was not anticipated.
 
         
 
              3.  Claimant is 63 years of age, married and has no 
 
         dependents.
 
         
 
              4.  Claimant's injury was an aggravation of preexisting 
 
         degenerative arthritis in her spine.
 
         
 
              5.  Claimant is able to function at least as well as 
 
         indicated by Drs. Hutchinson and Willett.
 
         
 
              6.  Claimant lives a relatively normal life for a retired 
 
         person.
 
         
 
              7.  The credibility of claimant's testimony regarding her 
 
         plans of continued employment and also regarding the severity of 
 
         her physical complaints is not well corroborated and is not 
 
         accepted as being an accurate indicator of her abilities and 
 
         limitations.
 
         
 
              8.  Claimant has experienced a 15% loss of earning capacity 
 
         as a result of the injuries she sustained on March 8, 1985.
 
              9.  Claimant has not made bona fide efforts to return to 
 
         gainful employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant is entitled to receive 62 2/7 weeks of 
 
         compensation for healing period and 75 weeks of compensation for 
 
         permanent partial disability.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant 
 
         sixty-two and two-sevenths (62 2/7) weeks of compensation for 
 
         healing period at the stipulated rate of one hundred twenty-four 
 
         and 38/100 dollars ($124.38) per week commencing March 10, 1985.
 
         
 
              IT IS FURTHER ORDERED that defendant pay claimant 
 
         seventy-five (75) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred twenty-four and 
 
         38/100 dollars ($124.38) per week commencing May 20, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendant receive credit for the 
 
         eighty-two (82) weeks of compensation paid prior to hearing and 
 
         also for any weekly compensation paid subsequent to the date of 
 
         hearing.  All past due amounts remaining unpaid after allowance 
 
         of the credits as provided herein shall be paid in a lump sum 
 
         together with interest computed from the date each payment came 
 
         due pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the employer pursuant to Division of Industrial 
 
         Services Rule 343-4.33 in the amount of one hundred forty-one and 
 

 
         
 
         
 
         
 
         WAMSLEY V. K-MART CORPORATION
 
         Page  10
 
         
 
         
 
         67/100 dollars ($141.67).
 
         
 
              IT IS FURTHER ORDERED that defendant file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343.3.1.
 
         
 
         
 
              Signed and filed this 10th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Monty L. Fisher
 
         Attorney at Law
 
         Suite 200, Snell Building
 
         P.O. Box 1560
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Joel T. S. Greer
 
         Attorney at Law
 
         112 West Church Street
 
         P.O. Box 496
 
         Marshalltown, Iowa 50158
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40, 1802, 1803,4100
 
                                                  Filed February 10, 1988
 
                                                  MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JEAN WAMSLEY,
 
         N/K/A JEAN KENNE,
 
         
 
              Claimant,                             File No. 789563
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         K-MART CORPORATION,                        D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.40, 1802, 1803, 4100
 
         
 
              Sixty-one-year-old claimant at time of injury, age 63 at 
 
         time of hearing, sought benefits in the nature of running healing 
 
         period or permanent total disability as a result of a back injury 
 
         which had been admitted by the employer.  Claimant's credibility 
 
         regarding the severity of her complaints was found to be lacking 
 
         as it was not corroborated by objective evidence in the record.  
 
         Claimant had not made bona fide efforts to resume employment.  
 
         Awarded healing period as indicated by one of her treating 
 
         physicians and 15% permanent partial disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         SYLVESTER L. STEFFEN,
 
         
 
             Claimant
 
         
 
         VS.
 
         
 
         HARVESTALL INDUSTRIES, INC.,
 
                                                 File No. 789568
 
              Employer,
 
                                                 R U L I N G  0 N
 
         and
 
                                                R E Q U E S T  F 0 R
 
         IOWA SMALL BUSINESS EMPLOYERS'
 
                                                D E C L A R A T 0 R Y
 
         WORKERS' COMPENSATION GROUP,
 
                                                  J U D G M E N T
 
         and
 
         
 
         ADJUSTCO, INC.,and
 
         UNDERWRITERS' ADJUSTING CO.,
 
         
 
             Insurance Carriers,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
              On June 19, 1987 the claimant filed a "Motion for 
 
         Declaratory Judgment for Settling Bona Fide Dispute Subject to 
 
         Iowa Workers' Compensation Laws 85.35(6) & 85.36(4)." There being 
 
         no resistance the same comes on for determination.
 
         
 
              It is clear from a review of claimant's motion that it fails 
 
         to meet the requirements for a petition for declaratory ruling.  
 
         Division of Industrial Services Rule 343-X.5 indicates that an 
 
         agency may refuse to issue a declaratory ruling for good cause.
 
         
 
              WHEREFORE, claimant's motion for declaratory ruling is 
 
         refused for the following reasons.
 
         
 
              1.  The petition does not contain facts sufficient to 
 
         demonstrate that the petitioner will be aggrieved or adversely 
 
         affected by the failure of the agency to issue a ruling.
 
         
 
              2.  The agency does not have jurisdiction over all the 
 
         questions presented in the petition.
 
         
 
              3.  The questions presented by the petition are also 
 
         presented in a current contested case, or other agency or 
 
         judicial proceeding, that may definitively resolve them.  This is 
 
         not only shown by claimant's motion, but is evident by a 
 
         proceeding which 
 
                                                
 
                                                         
 
         STEFFEN V. HARVESTALL INDUSTRIES, INC.
 
         Page 2
 
         
 
         
 
         is currently before this agency by claimant against the named 
 
         defendants.
 
         
 
              4.  The facts or questions presented in the petition are 
 
         unclear, overbroad, insufficient, or otherwise inappropriate as a 
 
         basis upon which to issue a ruling.
 
         
 
              5.  The petition is not based upon facts calculated to aid 
 
         in the planning of future conduct but is, instead, based solely 
 
         upon prior conduct in an effort to establish the effect of that 
 
         conduct or to challenge an agency decision already made.
 
         
 
              THEREFORE, claimant's motion for declaratory ruling is. 
 
         denied and dismissed.
 
         
 
         
 
              Signed and filed this 9th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                        DAVID E. LINQUIST
 
                                        ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Sylvester L. Steffen
 
         Rte. Three Box 137
 
         New Hampton, Iowa 50659
 
         CERTIFIED MAIL
 
         
 
         Mr. Dan L. Dudley
 
         Attorney at Law
 
         5601 Hickman Road, Suites 3 & 4
 
         Des Moines, Iowa 50310
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES W. GIBSON,
 
         
 
              Claimant,                           File No. 789945
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         GRIFFIN PIPE PRODUCTS CO.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by James W. 
 
         Gibson, claimant, against Griffin Pipe Products Co. (Griffin), 
 
         self-insured employer, for benefits as a result of an alleged 
 
         injury of March 12, 1985.  A hearing was held in Council Bluffs, 
 
         Iowa, on December 10, 1986 and the case was submitted on that 
 
         date.
 
         
 
              The record consists of the testimony of claimant, Jimmy 
 
         Williams, Dorcas Gibson, Larry W. Beard, and Kenneth Jezierski; 
 
         and joint exhibits 1 through 29.
 
         
 
              The parties stipulated that claimantOs weekly rate of 
 
         compensation is $269.92; that claimant was off work from March 
 
         13, 1985 through June 2, 1985; that permanent partial disability 
 
         benefits, if awarded, would commence on June 3, 1985; and that 
 
         claimantOs injury of March 12, 1985 arose out of and in the 
 
         course of his employment with Griffin.
 
         
 
                                      ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal relationship between 
 
         claimantOs injury of March 12, 1985 and his asserted disability; 
 
         and
 
         
 
              2)  Nature and extent of disability; specifically, claimant 
 
         argues that this is a body as a whole case while defendant argues 
 
         that this is a scheduled case.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              Claimant testified that he is 53 years of age having been 
 
         born October 11, 1933.  He is right handed.  Claimant did not
 
         complete high school and has no specialized training.  He entered 
 
         the armed services on January 12, 1951 and was a medic in Japan 
 
         for seventeen months; he also served in Korea for nine months.  
 
         He can read and write, but his math ability is only fair.
 
         
 
              Claimant testified that he started working for Griffin on 
 

 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page   2
 
         
 
         
 
         July 17, 1974 and that Griffin makes round pipe out of iron or 
 
         other metals.  He then described the jobs he has performed at 
 
         Griffin,one of which is a "material handler."   He has also 
 
         worked as a "second helper" and was paid a different rate for 
 
         this job than he was or is paid for the material handler job.  
 
         Griffin is a union shop.  He stated that he was a laborer for 
 
         Griffin also.  Prior to coming to work for Griffin, claimant 
 
         worked in a freezer and also drove a forklift.  He has had a job 
 
         with county government and has dug water wells in the past.  He 
 
         also has farmed with his father.  He did not receive any 
 
         specialized training for any of these jobs.
 
         
 
              Claimant testified that Griffin has three shifts and that 
 
         there is a pay differential for these shifts.  Jobs are bid on at 
 
         Griffin and seniority is the determining factor in the bidding 
 
         process.  An individual can be bid out of a job.
 
         
 
              Claimant testified that on March 12, 1985, he was a "second 
 
         helper" for that day.  His rate of pay for that day was $10.03.  
 
         He was injured when hot iron "bubbled out" and caused burns on 
 
         his body.  He received injuries to his left hand, neck, and "all 
 
         down the front of me" and to his left foot.  He testified that 
 
         his face was not affected as he had goggles on that were badly 
 
         damaged.  Claimant was hospitalized as a result of his burns.  He 
 
         described the doctors that treated him in the hospital and was in 
 
         the hospital for ten days.  He was then "on therapy" until June 
 
         3, 1985.  Subsequent to June 3, 1985, claimant was an outpatient 
 
         and also had pigskin put on his left foot.  Claimant described 
 
         two particularly bad burns to his left foot.  He described the 
 
         burns on his neck, left hand, one of his shoulders, and on his 
 
         "belly.O
 
         
 
              Claimant testified that when he returned to work in June 
 
         1985, he was assigned as a material handler as it was suggested 
 
         that he stay away from hot iron.  As a material handler, he 
 
         drives a forklift.  Claimant was shown exhibit 29 and then 
 
         testified that he was paid $9.19 per hour on June 3, 1985.  He 
 
         testified that on June 3, 1985, a second helper would have been 
 
         paid $9.63.  He testified that his left foot and left hand 
 
         bothered him on June 3, 1985.  He has sustained loss of strength 
 
         and grip in his left hand.  He currently has problems with his 
 
         left foot and his stomach itches when it gets warm where he 
 
         works.
 
         
 
              Claimant testified that after June 3, 1985, he bid on a job 
 
         working "on the trough."  He was on this job for only a short 
 
         period of time because it caused his left hand to swell up.  He 
 
         reported this swelling to his employer and was then reassigned to 
 
         the material handler job after he was treated for this problem by 
 
         Karen Proberts, M.D.  A safety committee at Griffin recommended 
 
         that claimant stay away from areas where it is hot.  Claimant 
 
         testified that the material handler job paid less than the trough 
 
         job.  Claimant testified that the material handler job now pays 
 
         $9.59 plus a 30 1/2 cent raise.  The trough job now pays $9.92 
 
         per hour plus a 30 1/2 cent raise.
 
         
 
              Claimant testified that he worked the day prior to the 
 
         hearing held on December 10, 1986 and that he was still 
 
         experiencing physical problems.   His left foot hurt around the 
 

 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page   3
 
         
 
         
 
         top of the arch and he cannot stand as long as he used to.  
 
         Climbing stairs is a problem for him.  Claimant's left hand is 
 
         currently stiff and sore and is sensitive to heat.  He still has 
 
         loss of strength and loss of ability to lift.  Currently, the 
 
         claimant has problems with his torso when he gets around too much 
 
         heat.  The area that was burned on March 12, 1985 starts to itch 
 
         at work when he gets around too much heat.  Also, temperature 
 
         changes affect claimant's torso area, left hand and left.foot. 
 
         Claimant has very little exposure to heat at Griffin while 
 
         working as a material handler.  Claimant currently has a problem 
 
         lifting with his left hand and a problem climbing because of his 
 
         left foot.  Claimant attributes all of his physical problems 
 
         described above to the burn incident of March 12, 1985.  Claimant 
 
         acknowledged that he does have diabetes and that he takes 
 
         medication for this condition.  He then testified that the 
 
         healing of his burns has been "awfully slow."
 
         
 
              Claimant testified that in his opinion he is too old to seek 
 
         retraining or find other work.  Claimant commented that if 
 
         Griffin closes, he would tell the truth about his physical 
 
         condition on a job application.  He then stated that his right 
 
         foot is a club foot.
 
         
 
              On cross-examination, claimant acknowledged that he has 
 
         Oworked regularly" from June 3, 1985 through December 9, 1986.  
 
         He also acknowledged that in April 1986, he was off work for a 
 
         week or two because of his diabetic condition.  Claimant 
 
         acknowledged that he "can handle" his material handler job.  
 
         Claimant was shown exhibit 21 and then acknowledged that his job 
 
         classification on March 12, 1985 was ductile iron treater and 
 
         that he worked in a different capacity on that particular day 
 
         pursuant to the union contract provision.  Claimant was then 
 
         shown exhibit 29 and testified that a ductile iron treater is in 
 
         job class 5. Claimant was shown exhibit 22 and then testified 
 
         regarding the jobs that he bid on after returning to work in 
 
         1985.  In addition to listing the jobs that claimant did, in 
 
         fact, bid on,this exhibit sets out the jobs claimant could have 
 
         bid on.  Claimant testified that his current job class is class
 
         
 
         
 
              4. On March 12, 1985, as indicated above, claimant's job 
 
         class was class 5.  Claimant acknowledged that he could be a pipe 
 
         inspector on the second or third shift and that this job pays 
 
         more money than his current job.  Claimant specifically 
 
         acknowledged that he is physically able to do the pipe inspector 
 
         job but that he bid out of this job.
 
         
 
              Claimant testified that on September 9, 1985, he bid on a 
 
         cast machinist job, but then testified that he bid on this job 
 
         even though he was not physically able to do the job.  
 
         Subsequently, claimant attempted to do the trough job but a 
 
         "joint decision" was made that he should not do this job.  On 
 
         February 26, 1986, claimant bid on the job of Mag Tr Prep which 
 
         he acknowledged as a "hot job."
 
         
 
              Claimant testified on redirect that the second shift at 
 
         Griffin starts in the afternoon and ends at midnight.  He also 
 
         testified that the first bid after he returned to work in 1985 
 
         was the bid of September 9, 1985 involving the cast machinist 
 

 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page   4
 
         
 
         
 
         position.  He then testified that in September 1985 he did not 
 
         know that his hand would swell up if he worked in such a 
 
         position.  He then testified that he worked in the trough job for 
 
         a short period of time in September 1985.  On November 27, 1985, 
 
         claimant bid on the trough job again and then changed his mind.  
 
         He testified that he bid on the cast machinist job on January 7, 
 
         1986 even though he did not think he could handle the job; he 
 
         would have to lift cores weighing 40 to 50 pounds and he would 
 
         have to do this with both hands.  He was of the opinion that he 
 
         could not handle this job because of his burn injuries of March 
 
         12, 1985.
 
         
 
              On recross-examination, claimant testified that he was a 
 
         ductile iron treater on March 11, 1985.  He then testified that 
 
         on March 12, 1985, he was a ductile iron treater initially but 
 
         then stepped into the second helper position on that date with a 
 
         little extra pay.  He acknowledged that on March 13, 1985, he 
 
         would have been a ductile iron treater once again in all 
 
         likelihood.
 
         
 
              Jimmy Williams testified that he is a trough operator at 
 
         Griffin.  He knows claimant and testified that claimant's left 
 
         hand swelled up in September 1985 when he was around heat at 
 
         work.  He testified that claimant was counseled to "get out of 
 
         the hot areas" such as second helper or ductile iron worker.  
 
         Williams testified that Griffin is good at getting people back to 
 
         work.  On cross-examination, he acknowledged that he is neither a 
 
         foreman nor a shift supervisor.
 
         
 
              Dorcas Gibson testified that she is claimant's spouse and 
 
         that swelling resulted when claimant worked the trough job in 
 
         September 1985.  After June 1985, when claimant returned to work, 
 
         he complained about stiffness in his left hand, that his left 
 
         foot hurt, that his torso bothered him, and that heat bothered 
 
         him.  
 
         
 
         She testified that claimant cannot now stand as long as he was 
 
         able to prior to March 12, 1985.  Claimant also has trouble 
 
         walking.  She then explained the family problems that would 
 
         result if claimant worked the second or third shift at Griffin.
 
         
 
              Larry W. Beard testified that he has known claimant since 
 
         1974.  Beard has been employed by Griffin at Council Bluffs since 
 
         October 1978.  Beard did not witness the incident of March 12,, 
 
         1985 but was called to the scene and observed claimantOs 
 
         injuries.  Beard has observed that burn victims are sensitive to 
 
         heat for as long as a year after their return to work.  He then 
 
         testified that, based on his observations, "most will come out of 
 
         it."  He testified that Griffin "puts people away from the heat" 
 
         when they come back.  He characterized claimant as a "good 
 
         regular steady employee" after his return to work in 1985.  He 
 
         also testified that claimant was sensitive to heat in his hands 
 
         prior to March 12, 1985.  On cross-examination, Beard 
 
         acknowledged that as a general rule Griffin employees do not have 
 
         the heat sensitivity problems experienced by claimant prior to 
 
         March 12, 1985.
 
         
 
              Kenneth Jezierski testified that he is the plant personnel 
 
         manager for Griffin at Council Bluffs and has worked in this 
 

 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page   5
 
         
 
         
 
         capacity since October 1985.  He has workers' compensation 
 
         responsibilities and knows claimant.  He was shown exhibit 21 and 
 
         testified that claimant's job classification on March 12, 1985 
 
         was that of ductile iron treater with a rate of pay on that date 
 
         of $9.30 per hour.  On June 3, 1985, claimant returned to the 
 
         first shift as a material handler with a rate of pay of $9.19 per 
 
         hour.  This witness then testified that exhibit 29 is a part of 
 
         the local union agreement and sets the wage rate for various job 
 
         classifications.  A ductile iron treater is a class 5 job and 
 
         material handler is a class 4.   Since June 1985, claimant has 
 
         remained in the position of material handler with a pay increase 
 
         to $9.59 per hour effective November 18, 1985.  He is now paid 
 
         $9.59 per hour plus the 30 1/2 cent pay raise.  A ductile iron 
 
         treater is now paid ten dollars and one-half cent per hour.  
 
         Currently, the difference in rate of pay between a material 
 
         handler and a ductile iron treater is eleven cents per hour.
 
         
 
              Jezierski testified that permanent job changes are made 
 
         through the bidding system, and there is a trial period of up to 
 
         five days on a particular job.  Jezierski testified that he is 
 
         the author of exhibit 22.  Exhibit 22 lists job classes equal to 
 
         or higher than claimant's job classification of 4.
 
         
 
              On cross-examination, Jezierski acknowledged that an 
 
         "upgrade" could be for one-half hour or a day with a maximum 
 
         period of fourteen days.  At the end of fourteen days, an
 
         
 
         
 
         
 
         individual would have to bid on the job as a conditional job.
 
         
 
              Exhibit 2 is claimant's deposition taken on June 12, 1986.  
 
         On page 10, claimant testified that seniority was the reason for 
 
         his temporary assignment on March 12, 1985 as a second helper.  
 
         On page 12, claimant testified that he had no protective clothing 
 
         on March 12, 1985 except goggles.  On page 15, he stated that he 
 
         got burned where the right arm joins the body.
 
         
 
              Exhibit 3 is the deposition of Joel N. Bleicher, M.D., taken 
 
         on September 18, 1986.  He has been a plastic surgeon since 1980; 
 
         he specializes in burns.  He first saw claimant on June 13, 1985. 
 
          His diagnosis is thermal burn injury caused by the incident of 
 
         march 12, 1985.  Claimant has had "occupational therapy" to 
 
         improve the range of motion of his left hand.  Claimant was seen 
 
         again on June 10, 1986 with complaints of hyperesthesia of the 
 
         skin of the abdomen and itching of the abdomen and left foot. on 
 
         page 13, Dr. Bleicher testified: "He may have some residual 
 
         stiffness and swelling in his hand forever.  By the same token, 
 
         he may gradually improve to the point where he has no extensive 
 
         persistence of his problems." In June 1986, claimant still had 
 
         swelling and he complained of stiffness in his left hand.  On 
 
         page 15, Dr. Bleicher testified that the loss of motion in 
 
         claimant's left hand is probably permanent.  Dr. Bleicher also 
 
         testified that the impairment to claimant's left foot is probably 
 
         permanent, but claimant's torso problem is probably not 
 
         permanent.  Dr. Bleicher gave claimant a ten percent whole body 
 
         rating.  The following exchange appears on page 20:
 
         
 
              BY MR. SCIORTINO:
 

 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page   6
 
         
 
         
 
         
 
              Q.  What kind of complications in the future can arise from 
 
              burn injuries like those that Mr. Gibson has?
 
         
 
              A.  I don't really foresee any future complications from 
 
              this particular burn injury.
 
         
 
              On page 21, Dr. Bleicher stated that no future treatment, 
 
         surgery or medication was probably needed by claimant.  On pages 
 
         24-25, Dr. Bleicher stated: "The hypersensitivity which the other 
 
         burned areas have may make it more difficult for him to work, 
 
         yes." (Emphasis added.) On page 26, he acknowledged the reduction 
 
         of his whole body rating from ten to five percent.
 
         
 
              Exhibit 6, page 23, shows the areas of claimant's body that 
 
         were burned on March 12, 1985.
 
         
 
              Exhibit 10, page 1, dated June 15, 1985, is authored by Dr. 
 
         Proberts and reads in part: "Mr.  James Gibson was first seen at 
 
         the emergency room at Mercy Hospital on March 13, 1985 with
 
         burns to the neck, right shoulder, abdomen, scrotum, legs and 
 
         left foot."  On page 2, Dr. Proberts stated: "His prognosis at 
 
         this time is excellent."  On page 2, Dr. Proberts stated:
 
         
 
              At this time I would be hesitant in recommending a 
 
              percentage rating for permanent partial disability because 
 
              he should have complete recovery of function and probably 
 
              also sensation in all areas.  However, I would recommend a 
 
     
 
         
 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page   7
 
         
 
         
 
              referral to Dr. Joel Bleicher for more specific rating as to 
 
              partial disability secondary to burn scarring.
 
         
 
              Exhibit 11, dated July 1, 1985, is authored by Ronald K. 
 
         Miller, M.D., and contains a three percent rating for claimant's 
 
         left foot and a three percent rating for claimant's affected 
 
         hand.  Exhibit 13 also contains these three percent ratings.
 
         
 
              Exhibit 14, dated in March 1986, is authored by Dr. Proberts 
 
         and reads in part:
 
         
 
              I did examine James W. Gibson again on February 20, 1986.  
 
              At that time Mr. Gibson, on examination, has some reddened 
 
              areas on his left hand which are left over scars from the 
 
              previous burn.  However, there is good softness of the 
 
              tissue, no contracture of the scars and no limitation of 
 
              motion, sensation or function of the hand.
 
         
 
                   ....
 
         
 
              In reviewing his examination at this time, I do feel like 
 
              there is very little evidence of permanent disability in the 
 
              hand, if any.  I do feel that he has some limitation of the 
 
              fourth and fifth toes of the left foot, possibly secondary 
 
              to the injury from the burn, but again this should not cause 
 
              significant permanent disability.
 
         
 
              Exhibit 15, dated April 9, 1986, is authored by Dr. Proberts 
 
         and therein she agrees with Dr. Miller's two three percent 
 
         ratings, and states the basis for this opinion.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant in this case bears the burden of showing that 
 
         Othere resulted an ailment extending beyond the scheduled 
 
         loss....O.  Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 
 
         1262, 130 N.W.2d 667, 669 (1964).  This is a question of fact 
 
         determined from the record.  Id. at 1257, 130 N.W.2d at 669.  The 
 
         Iowa Supreme Court held that such a showing had been made in 
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961). There the court stated that:
 
         
 
         
 
         
 
         
 
              [W]hile the trauma, the injury, was limited to the right 
 
              foot, the Commissioner found claimant, as a result thereof, 
 
              was affected with an ailment that extended beyond the 
 
              scheduled loss of a foot, or the use thereof.  The schedule 
 
              is not applicable.
 
         
 
         Id. at 292, 110 N.W.2d at 664.
 
         
 
              The Iowa court reached a similar conclusion in Dailey v. 
 
         Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  In 
 
         Dailey, the claimant sustained an injury to his right femur. his 
 
         injury caused a shortening of the leg, which in turn resulted in 
 
         a tilting of the pelvis and curvature of the spine., Id. at 763, 
 
         10 N.W.2d at 571.  On the basis of this evidence, the court held 
 

 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page   8
 
         
 
         
 
         that claimant's initial scheduled injury resulted in a 
 
         nonscheduled permanent ailment, and that he was entitled to 
 
         nonscheduled permanent disability benefits.  Id. at 765, 10 
 
         N.W.2d at 573-74.
 
         
 
              The Iowa Court of Appeals stated in Caylor v. Employers Mut. 
 
         Cas. Co., 337 N.W.2d 890, 893 (Iowa App. 1983):
 
         
 
              The statute which confers the right to collect disability 
 
              compensation can also limit the amount of compensation 
 
              payable for specifically enumerated disabilities.  Barton v. 
 
              Nevada Poultry Co., 253 Iowa 285, 289, 110 N.W.2d 660, 662 
 
              (1961).  Thus, Iowa Code SS 85.34(l) provides a statutory 
 
              compensation schedule for the loss of specifically 
 
              enumerated members.  "The very purpose of the schedule is to 
 
              make certain the amount of compensation in the case of 
 
              specific injuries and to avoid controversies."  Dailey v. 
 
              Pooley Lumber Co., 233 Iowa 758, 760, 10 N.W.2d 569, 571 
 
              (1943).
 
         
 
              If a claimant's impairment is limited to a scheduled member 
 
              Owe are not concerned with the question of the extent of 
 
              disability.  The compensation in that event is definitely 
 
              fixed according to the loss of use of the particular 
 
              member." Dailey, 10 N.W.2d at 571.  See also Graves v. Eagle 
 
              Iron Works, 331 N.W.2d 116, 118-119 (Iowa 1983).  "[W]here 
 
              the result of an injury causes the loss of a foot, or eye, 
 
              etc., such loss, together with its ensuing natural results 
 
              upon the body, is declared to be a permanent partial 
 
              disability and entitled only to the prescribed 
 
              compensation."  Barton  253 Iowa at 290, 110 N.W.2d at 663. 
 
              (Emphasis added)
 
         
 
              The claimant in this case clearly failed to establish a 
 
         whole body injury.  Assuming for purposes of discussion that 
 
         claimant could not do the trough job because of the swelling of
 
         
 
         
 
         
 
         his left hand, this does not establish a whole body injury 
 
         because only a scheduled member is involved.  The burns to 
 
         claimant's shoulder and torso have not affected claimant's 
 
         earning capacity, in my opinion, given the evidence of record.  
 
         It is my judgment that claimant could now do the ductile iron 
 
         treater job or the second helper job, or even the trough job, 
 
         with the only possible physical problem being that of swelling of 
 
         the left hand.
 
         
 
              It will be found that claimant sustained permanent partial 
 
         impairment to both his left foot and left hand.  The three 
 
         percent ratings of record are persuasive.  Both Drs. Miller and 
 
         Proberts have given these ratings.  Iowa Code section 85.34(2)(s) 
 
         therefore applies.  See Simbro v. DeLong's Sportswear, 332 N.W.2d 
 
         886 (Iowa 1983).  Using the impairment tables of record (exhibits 
 
         24-28), it is determined that claimant is entitled to fifteen 
 
         weeks of permanent partial disability commencing on June 3, 1985.  
 
         He is also entitled to healing period benefits from March 13, 
 
         1985 through June 2, 1985.  The fifteen weeks of permanency 
 
         benefits is computed by converting the three percent ratings of 
 

 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page   9
 
         
 
         
 
         record into whole body ratings and then using the "combined 
 
         values chart" to arrive at a three percent combined rating.  
 
         Three percent of five hundred weeks is fifteen weeks.
 
         
 
              It is also concluded that claimant established a causal 
 
         connection between the impairment to his left foot and left hand. 
 
          Dr. Bleicher's testimony in this regard is persuasive.   
 
         Defendant's argument to the contrary is frivolous.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant started working for Griffin on July 17, 1974.
 
         
 
              2.  On March 12, 1985, claimant's job classification was 
 
         ductile iron treater, but he was working as a second helper on 
 
         that particular day as a temporary assignment.
 
         
 
              3.  On March 12, 1985, claimant was burned by hot iron on 
 
         his neck, right shoulder, abdomen, scrotum, legs, left foot, and 
 
         left hand.
 
         
 
              4.  Claimant's injury of March 12, 1985 resulted in 
 
         permanent impairment to claimant's left foot and left hand, but 
 
         not to his abdomen, neck or right shoulder.
 
         
 
              5.  The impairment to claimant's left hand is three 
 
         percent.
 
         
 
              6.  The impairment to claimant's left foot is three 
 
         percent.
 
         
 
              7.  Claimant's stipulated weekly rate of compensation is
 
         $269.92.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established by a preponderance of the evidence 
 
         that there is a causal connection between his work-related injury 
 
         of March 12, 1985 and some permanent partial impairment to his 
 
         left hand and left foot.
 
         
 
              2.  Claimant established entitlement to healing period 
 
         benefits from March 13, 1985 through June 2, 1985 and then 
 
         fifteen (15) weeks of permanent partial disability benefits 
 
         commencing on June 3, 1985, pursuant to Iowa Code section 
 
         85.34(2)(s) as interpreted in Simbro v. DeLong's Sportswear, 332 
 
         N.W.2d 886 (Iowa 1983).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendant pay the weekly benefits described above at a 
 
         rate of two hundred sixty-nine and 92/100 dollars ($269.92).
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 

 
         
 
         
 
         
 
         GIBSON V. GRIFFIN PIPE PRODUCTS CO.
 
         Page  10
 
         
 
         
 
              That defendant be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendant pay the costs of this action, pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), formerly 
 
         Industrial Commissioner Rule 500-3.1(2), as requested by the 
 
         agency.
 
         
 
              Signed and filed this 12th day of January, 1987.
 
         
 
         
 
         
 
         
 
                                             T. J. McSWEENEY
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Michael A. Sciortino
 
         Attorney at Law
 
         221 South Main
 
         Council Bluffs, Iowa 51501
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P.O. Box 398
 
         Fifth Floor Park Bldg.
 
         Council Bluffs, Iowa 51502
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.40; 1802; 1803.1
 
                                                   Filed 1-12-87
 
                                                   T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JAMES W. GIBSON,
 
         
 
              Claimant,                           File No. 789945
 
         
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         GRIFFIN PIPE PRODUCTS CO.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         
 
         
 
         1402.40; 1802; 1803.1
 
         
 
              Held in arbitration that claimant failed to establish whole 
 
         body injury.  Claimant did, however, sustain permanent partial 
 
         impairment to his left hand and his left foot.  He was awarded 
 
         healing period benefits and 15 weeks of permanent partial 
 
         disability benefits pursuant to Iowa Code section 85.34(2)(s) and 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983).