Page   1
                     before the iowa industrial commissioner
            TERRY SYFERD,                 :
                 Claimant,                :
                                          :        File No. 796344
            vs.                           :
            GEO. A. HORMEL & CO.,         :     A R B I T R A T I O N
                 Employer,                :        D E C I S I O N
            and                           :
                 Insurance Carrier,       :
                 Defendants.              :
                              STATEMENT OF THE CASE
                 This is a proceeding in arbitration wherein the 
            claimant seeks additional permanent partial disability 
            benefits as a result of an injury occurring on June 5, 1985.  
            The record in the proceeding consists of the testimony of 
            claimant and Leona E. Martin; and joint exhibits 1 through 
                 The issues for resolution are:
                 1.  Whether claimant is entitled to permanent partial 
            disability benefits over and above the 100.143 weeks which 
            defendants have already paid and which defendants agree they 
            owe claimant;
                 2.  Whether there is a causal connection  of any 
            permanent partial disability benefits claimant may have over 
            and above 20 percent permanent partial disability for which 
            disability the defendants have already agreed is owed and 
            have paid;
                 3.  Whether defendants are entitled to an 85.38(2) 
            credit as to the $800.92 disability income payments claimant 
            has received beginning January 1, 1989 against any 
            additional workers' compensation benefits that would be 
            awarded commencing January 1, 1989; and,
                 4.  Whether claimant is an odd-lot candidate.
            Page   2
            findings of fact
                 The undersigned deputy having heard the testimony and 
            considered all the evidence, finds that:
                 Claimant is a 57-year-old high school graduate who has 
            had no additional formal education and whose work history 
            since his high school graduation has been in manual labor 
            jobs.  Claimant's history is outlined in detail in joint 
            exhibit 6, page 54.  Claimant worked for defendant employer 
            for approximately 28 years.  Within this employment with 
            defendant employer, approximately 13 years, 1969 to 1982, 
            claimant was as a ham boner which a vocational 
            rehabilitation consultant considered semi-skilled since 
            there had to be knowledge of the use of knives.  All 
            claimant's other employment is considered unskilled labor.
                 Claimant has earned as high as $31,700 in one year.  
            His income is dependent on various factors - incentives, 
            layoffs, strikes, location of his work, etc.  Claimant 
            averaged $428 per week in 1985 plus various other benefits 
            such as health, disability, dental insurance, and retirement 
            benefits.  Claimant's union contract provided he could only 
            be fired for just cause.
                 Claimant indicated he had no low back problems or 
            problems with a congenital spina bifida condition and that 
            his health was generally good prior to his June 5, 1985 
            injury.  The medical evidence supports claimant.
                 On June 5, 1985, claimant was injured on defendant 
            employer's premises when he slipped on the floor as he was 
            walking down a hall to punch out the clock at the end of his 
            workday.  There was liquid on the floor from boxes of meat.  
            Although claimant did not actually fall, he slid on the 
            sloping floor from side to side trying to catch himself as 
            he was slipping and sliding.  Claimant first thought that 
            his injury was minor and went home and sat down and could 
            hardly get up.  Claimant related his medical treatment and 
            his medical problems.  Claimant went back to work and 
            continued to have problems.
                 The parties stipulated to claimant's healing period and 
            temporary partial disability.  Defendants also agreed that 
            the 100.143 weeks which represents basically 20 percent 
            permanent partial disability they paid is causally connected 
            to claimant's June 5, 1985 injury and there is no dispute 
            concerning that.  The parties are basically arguing over 
            whether there is any additional permanent partial disability 
            benefits due claimant as a result of a June 5, 1985 injury 
            and the causal connection issue is only as to any additional 
            permanent partial disability benefits that claimant is 
                 Claimant also testified by way of deposition on 
            February 20, 1990.  He indicated that he drew workers' 
            compensation payments through December 27, 1988 and began 
            drawing a disability retirement pension from defendants in 
            the amount of $800.92 beginning January 1, 1989.  Claimant 
            said he understood he will draw this the rest of his life 
            Page   3
            until he receives social security, at which time the Hormel 
            disability will be $400 per month.  Claimant indicated that 
            he would draw no Hormel disability if he received workers' 
            compensation (Joint Exhibit 2, page 15-16).
                 Claimant last worked for defendant employer on 
            September 10, 1986.  Claimant has not searched for work or 
            made any applications for employment anywhere since that 
            time.  Claimant has not contacted vocational rehabilitation 
            or job service to assist finding employment, nor has he 
            drawn unemployment compensation.  The company doctor, Donald 
            D. Berg, M.D., recommended consideration of vocational 
            rehabilitation on February 6, 1986 and again on February 13, 
            1986, at which time he suggested claimant should consider 
            changing jobs (Jt. Ex. 5(B).
                 Claimant had a myelogram on October 1, 1986, and on 
            October 2, 1986, R. F. Neiman, M.D., diagnosed claimant as 
            having a disc herniation at the L4-5 level above the 
            congenital spina bifida and abnormality at L5 (Jt. Ex. 4, p. 
            124; Jt. Ex. 5(J))  He suggested surgery for a herniated 
            disc but not epidural steroids.
                 On January 13, 1987, R. F. Beckman, M.D., Mercy 
            Hospital, Iowa City, performed an epidural steroid injection 
            (Jt. Ex. 4,
            p. 112).  Claimant said this gave him only temporary relief.  
            On January 26, 1987, Edward G. Law, M.D., an orthopedic 
            surgeon, opined:
                 I really don't think a discectomy would offer him 
                 a significant chance for relieving any half of his 
                 symptoms that he complains of.  I think he is 
                 suffering from L4-5 disc degeneration.  I think 
                 that removal of the small left sided disc 
                 herniation at L4-5 is unlikely to increase his 
                 level of comfort and adding a fusion to this is 
                 also unlikely to make him feel better.  I feel he 
                 has approximately 10% permanent partial 
                 impairment, that he could work with restrictions 
                 of no lifting more than 20 lbs at a time, no 
                 lifting more than 10 lbs. repetitively, no 
                 bending, stooping or twisting.  I think his 
                 healing period has ended.  I don't think he is 
                 likely to improve significantly in the future.
            (Jt. Ex. 4, p. 134; Jt. Ex. 5(N)).
                 Claimant's symptoms continued to progress and on June 
            15, 1987, Thomas A. Carlstrom, an orthopedic surgeon, 
            thought claimant was a better surgical candidate now and 
            recommended claimant be considered for a laminectomy.  
            Claimant testified that the doctor told him there was a 
            50-50 chance of success of relieving claimant's symptoms.  
            The medical record in evidence at other places in the record 
            seem to indicate that this 50-50 chance of success was in 
            reference to relieving back pain to the legs and not all the 
            pain that might be attributed to claimant's arthritis in his 
            Page   4
                 John C. VanGilder, M.D., a professor of neurology at 
            The University of Iowa, wrote on July 22, 1987:
                    I think with removing the disc he may have some 
                 relief of the symptomatology in the left lower 
                 extremity.  I doubt if this would effect the 
                 paresthesias in the right hip and may or may not 
                 modify the low back pain.  I can see no evidence 
                 to suggest instability.
                    I regard to surgery with removal of the L4-5 
                 lateral filling defect, I would not be optimistic 
                 that this would completely resolve his low back 
                 pain.  It may be partially helpful in resolving 
                 the left lower extremity pain which is only a 
                 partial component of his symptomatology.  I have 
                 discussed this with him in some detail and I think 
                 he fully understands this opinion.
            (Jt. Ex. 4, p. 146)
                 Defendants hired Management Consulting & Rehabilitation 
            Services and H. Shelby Swain, their rehabilitation 
            consultant, states in his October 28, 1987 report: 
                    Locating available work would also be extremely 
                 difficult in the general Ottumwa area since, 
                 recently, it was disclosed that the Ottumwa Hormel 
                 plant would be closed, with the loss of 450 jobs.
                    As far as academic functioning is concerned, 
                 Mr. Syferd has now been out of school long enough 
                 that it is doubtful he could really benefit by 
                 retraining, particularly at his age.  Also, his 
                 salable skills involve working in a meat packing 
                 plant for the last 28 years and, obviously, this 
                 is fairly hard work, physically.  His entire 
                 working experience involves medium to heavy 
                 physical work and he is probably precluded, due to 
                 his current physical problems, in doing this type 
                 of work, presently.
            (Jt. Ex. 5(S))
                 Mr. Swain indicates that there might be a number of 
            entry level menial-type positions that claimant might be 
            able to perform but indicated it would be foolish for 
            claimant to give up his retirement as well as the 
            possibility of receiving social security disability benefits 
            in order to accept these types of positions (Jt. Ex. 5(S).
                 In a September 1, 1987 report (Jt. Ex. 5(T)), Mr. Swain 
            indicated that claimant was very cooperative but claimant 
            indicated to him that he has chosen to take retirement and 
            file for social security disability and that he was not 
            interested in rehabilitation.  Mr. Swain also seemed to 
            indicate that claimant would not consider returning to work 
            for Hormel if a job was found for him as he has chosen to 
            take retirement pension.
            Page   5
                 It would seem obvious in taking the record as a whole 
            that there would be no position at defendant employer which 
            claimant could perform due to his medical condition and 
            restrictions.  The record also does not indicate that 
            defendant employer has offered any job or return to work to 
                 Claimant was referred by his attorney to Leona E. 
            Martin, a rehabilitation consultant and owner of Diversified 
            Rehabilitation Services.  She issued her report, which is 
            reflected in joint exhibit 6.  At the time of her report, 
            she obviously did not know about the evaluation and report 
            by David J. Boarini, M.D.  The undersigned basically agrees 
            with her comments that claimant was treated by a Hormel 
            company doctor, Donald D. Berg, M.D., an orthopedist; 
            Richard F. Neiman, M.D., neurologist; Edward G. Law, M.D., 
            orthopedist; Thomas A. Carlstrom, neurosurgeon; John C. 
            VanGilder, M.D., of the University of Iowa; and Samir R. 
            Wahby, M.D., orthopedist, and that no doctor recommended 
            surgery for claimant except Dr. Carlstrom, who recommended a 
            spinal fusion and told claimant the chances of improving his 
            condition were 50-50.  Ms. Martin was the rehabilitation 
            consultant that was hired by the social security 
            administrative law judge to testify on behalf of the social 
            security administration concerning claimant's disability 
            claim for social security disability benefits.  She 
            emphasized that she did not work for claimant or for Mr. 
            Pratt in claimant's social security action.  Ms. Martin 
                    Mr. Syferd, in his present physical condition, 
                 is unable to meet the requirements for competitive 
                 employment due to his inability to sit or stand 
                 for 6 hours of an 8-hour day.  He does not have 
                 the skills required of semi-skilled or skilled 
                 jobs which allow for more flexibility--sitting and 
                 standing at will.
                    At best, Mr. Syferd may be able to tolerate 
                 working part time at a job that provided extended 
                 rest periods, alternating positions, and a slow 
                 pace.  Employers do not chose to hire workers who 
                 risk another injury and are likely to have a high 
                 absentee rate due to another injury and are likely 
                 to have a high absentee rate due to pain.  His 
                 past work attempts serve as evidence that although 
                 he tried, he is unable to meet the demands of work 
                 on a regular basis, 40 hours per week.  Work which 
                 he might be able to do a few hours per day (at 
                 minimum wage) is not considered gainful 
            (Jt. Ex. 6, p. 56)
                 Claimant was evaluated by David J. Boarini, M.D., 
            orthopedic surgeon, on July 2, 1990, at defendants' request 
            and testified by deposition on August 1, 1990.  Dr. Boarini 
            indicated a good deal of pain claimant has in his lower back 
            is probably degenerative arthritis in nature and not caused 
            by his June 5, 1985 injury.  He indicated the June 6, 1985 
            Page   6
            injury could be responsible for claimant's disc problem but 
            it cannot be proven.  He conceded that based on claimant's 
            story when his symptoms began, it is quite possible that the 
            slip has to do with his disc problem.  Dr. Boarini estimated 
            that there was an 85 percent chance claimant could be 
            relieved of his pain from his back to his legs by a disc 
            operation but it would not relieve all his back pain from 
            his arthritis.
                 Dr. Boarini indicated he agrees with Dr. VanGilder as 
            to surgery and suggests surgery.  The undersigned does not 
            read or draw the same conclusion from Dr. VanGilder's report 
            of January 22, 1987 (Deposition Exhibit 3 of Joint Exhibit 
            3), as Dr. Boarini reads it and concludes.
                 Dr. Boarini does not address the fact that claimant had 
            no prior problems working or complaints before his June 5, 
            1985 injury or accident.  The doctor could not estimate with 
            reasonable medical certainty as to claimant's arthritic 
            progression other than it would slowly progress.  He didn't 
            address the effect trauma can have as to aggravating an 
            arthritic condition.  The doctor did say that claimant's leg 
            numbness is likely to persist as long as claimant does not 
            undergo surgery (Jt. Ex. 3, p. 27).  The undersigned notes 
            in Dr. Boarini's testimony that he referred to the "story" 
            of the claimant.  It appears that Dr. Boarini has a 
            skeptical attitude regarding claimant which seems to reflect 
            through his testimony, conclusions and comments.  It appears 
            from Dr. Boarini's deposition that he isn't facing reality 
            and does not address the common fact as to what a trauma can 
            do to lighten or activate symptoms of arthritic condition, 
            particularly considering the fact that the evidence is very 
            clear that claimant was not having problems from arthritis 
            or a spina bifida condition prior to June 5, 1985.  The 
            doctor could not understand why claimant did not want 
            surgery if he had so much pain (Jt. Ex. 3, p. 29).  The 
            doctor seems to indicate that the more pain a person has, 
            the more desire they have for surgery.  The undersigned 
            questions how thoroughly the doctor read the claimant's 
            prior medical.  Dr. Boarini is the only doctor who gave 
            claimant a better than 50-50 chance of surgical success as 
            to pain in claimant's legs and then said it would have no 
            likelihood of success as to claimant's arthritic pain.  Dr. 
            Boarini's partner did not give claimant much encouragement 
            for surgery three years earlier.  The undersigned is not 
            impressed with Dr. Boarini's evaluation, conclusions or 
                 The undersigned was initially disturbed by the fact 
            that claimant has not sought further rehabilitation or 
            additional employment even though it appears clear it would 
            be of the menial income jobs.  It seems that claimant is in 
            a difficult situation.  He is 57 years old, has no 
            transferable skills as to any work he is able to do, is not 
            a suitable candidate for retraining, has sought several 
            medical opinions to make sure that he could have relief from 
            his pain and symptoms if he did have surgery, and has 
            emphasized he will not have surgery.  Defendants attack 
            Page   7
            claimant's position that he has foreclosed any chance of 
            surgery.  The undersigned believes claimant is correct in 
            his position taking the medical expertise and the opinions 
            he has received to date.  Even Dr. Boarini indicated that 
            even with the surgery, claimant would be actually 
            substituting one impairment for possibly another, assuming 
            success.  A laminectomy, itself, carries an impairment 
                 There has been considerable testimony and discussion 
            concerning claimant's congenital or preexisting condition.  
            Defendants take claimant as he is.  For 28 years claimant 
            went through the rigors of working in the meat packing 
            industry and was able to do his job and perform his job 
            until he became injured.  Whatever arthritic condition that 
            built up over the years was not affecting claimant.  
            Defendants had 28 years of hard work from claimant.  The 
            medical evidence is clear that claimant's preexisting 
            condition was substantially, materially aggravated, 
            worsened, and lightened up by his June 5, 1985 injury.  The 
            undersigned finds that defendants are responsible for 
            claimant's total impairment and disability as they exist 
                 Taking into consideration claimant's age, education, 
            work experience, qualifications, any prior injuries or 
            subsequent injuries, vocational abilities, severity of his 
            injuries, healing period, motivation, and functional 
            impairment, the undersigned finds that claimant is totally 
            disabled and that his additional disability benefits would 
            continue to run from December 27, 1988 during the period of 
            claimant's disability at the stipulated rate of $264.42 per 
            week.  The undersigned finds that there is causal connection 
            as to claimant's total disability and his June 5, 1985 
                 Claimant contends he is an odd-lot candidate.  This 
            agency has held in the past that there must be an extended 
            search by the claimant as one of the conditions for the 
            application of the odd-lot doctrine.  It seems to be 
            currently the precedent even if it would seem fruitless for 
            the claimant to make such a search.  The undersigned does 
            not necessarily agree to that concept or that the Guyton 
            case held that.  This odd-lot doctrine application is moot 
            in this particular case anyway in light of the fact that the 
            undersigned has found claimant to be totally, permanently 
                 Defendants seek credit under 85.38(2) for an offset of 
            $800.92 that defendants have been paying claimant since 
            January 1, 1989 under its disability policy.  Claimant's 
            attorney contends notwithstanding the claimant's comment in 
            his deposition that there would be no offset or credit as to 
            these disability benefits against any workers' compensation 
            benefits.  Claimant contends that this disability was 
            payable regardless of any workers' compensation benefits and 
            was a right claimant earned under the terms of his 
            employment.  There is no insurance policy as exhibited in 
            Page   8
            the record.  The undersigned cannot change the terms of any 
            policy nor id the undersigned's decision intended to change 
            the terms of any policy.  The insurance carrier of said 
            policy is not a party to this action, at least as to 
            defending or arguing the terms of the policy.  There was 
            considerable discussion before the hearing, when the issues 
            were being delineated in the prehearing report, and the 
            parties knew before presenting their evidence, that the 
            undersigned, not yet having heard the evidence or seen the 
            exhibits, emphasized a hope that there would be some 
            evidence strictly from any policy that might help the 
            undersigned in being conclusive as to this issue.  
            Defendants offered no evidence, including oral testimony, as 
            to this issue through a witness.  The undersigned finds that 
            defendants are entitled to credit under 85.38(2) for only 
            those amounts under the terms of the insurance policy 
            providing for disability benefits, of which the claimant is 
            a third party beneficiary, specifically calling for 
            subrogation against any payments claimant might received as 
            a result of a workers' compensation award.  The undersigned 
            further finds that any such credit, if any, shall be reduced 
            by any income tax consequences, state and federal, and 
            social security that would reduce the gross amount and 
            further reduced by any reasonable attorney fee not to exceed 
            one-third of the gross amount that the claimant would owe to 
            his attorney for services rendered as a result of a workers' 
            compensation action.
                                conclusions of law
                 The claimant has the burden of proving by a 
            preponderance of the evidence that the injury of June 5, 
            1985 is causally related to the disability on which he now 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
            probability is necessary.  Burt v. John Deere Waterloo 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
            question of causal connection is essentially within the 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
                 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 
            Page   9
            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 
                 When an aggravation occurs in the performance of an 
            employer's work and a causal connection is established, 
            claimant may recover to the extent of the impairment. 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
            N.W.2d 591, 595 (1960).
                 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.
                 An employer takes an employee subject to any active or 
            dormant health impairments, and a work connected injury 
            which more than slightly aggravates the condition is 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
            620, 106 N.W.2d 591, and cases cited.
                 An employee is not entitled to recover for the results 
            of a preexisting injury or disease but can recover for an 
            aggravation thereof which resulted in the disability found 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
            125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591.  See also Barz v. 
            Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. 
            Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934).
                 If claimant has an impairment to the body as a whole, 
            an industrial disability has been sustained.  Industrial 
            disability was defined in Diederich v. Tri-City Railway Co., 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
            "It is therefore plain that the legislature intended the 
            term `disability' to mean `industrial disability' or loss of 
            earning capacity and not a mere `functional disability' to 
            be computed in the terms of percentages of the total 
            physical and mental ability of a normal man."
                 The opinion of the supreme court in Olson, 255 Iowa 
            Page  10
            1121, 125 N.W.2d 251, cited with approval a decision of the 
            industrial commissioner for the following proposition:
                    Disability * * * as defined by the Compensation 
                 Act means industrial disability, although 
                 functional disability is an element to be 
                 consid      That claimant is permanently, totally disabled.
                 That defendants are not entitled to any 85.38(2) 
            credits as to $800.92 per month group disability benefits 
            claimant has been receiving, beginning January 1, 1989, 
            except as may be specifically provided in any written 
            subrogation provision under the defendant employer's group 
            insurance policy, of which claimant is a beneficiary.  Any 
            credit is further reduced by any federal, state or social 
            security taxes payable from said sum and reduced by any 
            reasonable attorney fees on the gross amount, not to exceed 
            Page  11
                 THEREFORE, it is ordered:
                 That defendants pay compensation for permanent total 
            disability at the stipulated rate of two hundred sixty-four 
            and 42/100 dollars ($264.42) per week during the period of 
            claimant's disability, commencing with the stipulated date 
            of December 27, 1988.
                 That defendants shall pay accrued weekly benefits in a 
            lump sum.  Defendants have paid no workers' compensation 
            benefits for which they are entitled credit after and 
            commencing with December 27, 1988.
                 Defendants are only entitled to credit for the eight 
            hundred and 92/100 dollars ($800.92) monthly group 
            disability insurance payments that the claimant has been 
            receiving since January 1, 1989 up to the current date minus 
            any reduction due to reasonable attorney fees, federal, 
            state and social security taxes, and providing there is a 
            written subrogation clause in said group insurance policy 
            requiring reimbursement of said payments in the event of a 
            workers' compensation award.
                 That defendants shall pay interest on benefits awarded 
            herein as set forth in Iowa Code section 85.30.
                 That defendants shall pay the costs of this action, 
            pursuant to Division of Industrial Services Rule 343-4.33.
                 That defendants shall file an activity report upon 
            payment of this award as required by this agency, pursuant 
            to Division of Industrial Services Rule 343-3.1
                 Signed and filed this _____ day of September, 1990.
                                          BERNARD J. O'MALLEY
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies to:
            Mr Robert W Pratt
            Attorney at Law
            1913 Ingersoll Ave
            Des Moines IA 50309
            Mr Walter F Johnson
            Attorney at Law
            111 W Second St
            P O Box 716
            Ottumwa IA 52501
                                          1805; 54100
                                          Filed September 5, 1990
                                          Bernard J. O'Malley
                     before the iowa industrial commissioner
            TERRY SYFERD,                 :
                 Claimant,                :
                                          :        File No. 796344
            vs.                           :
            GEO. A. HORMEL & CO.,         :     A R B I T R A T I O N
                 Employer,                :        D E C I S I O N
            and                           :
                 Insurance Carrier,       :
                 Defendants.              :
            Claimant found to be permanently totally disabled.  Claimant 
            was 57 years old, 28 years working in meat packing industry 
            and no longer able to do this work or any meaningful work.  
            Claimant has no transferable skills and was untrainable.
            Claimant found not to be an odd-lot candidate, basically 
            because he didn't do extended job search which seems to be 
            this agency's precedent by prior commissioner rulings, even 
            if it appears any search would be fruitless.
         MARION CHIA,
         vs.                                     File No. 796436
         PUROLATOR COURIER CORP.             A R B I T R A T I 0 N
              Employer,                         D E C I S I 0 N
              Insurance Carrier,
                              STATEMENT OF THE CASE
              This is a proceeding in arbitration brought by Marion Chia, 
         claimant, against Purolator Courier Corporation, employer 
         (hereinafter referred to as Purolator), and Liberty Mutual 
         Insurance Company, insurance carrier, defendants, for workers' 
         compensation benefits as a result of an alleged injury on June 
         13, 1985.  On May 25, 1988, a hearing was held on claimant's 
         petition and the matter was considered fully submitted at the 
         close of this hearing.
              The parties have submitted a prehearing report of contested 
         issues and stipulations which was approved and accepted as a part 
         of the record in this case at the time of hearing.  Oral 
         testimony was received during the hearing from claimant and the 
         following witnesses: Marvin Krause, Wayne Sands, M.D., and Molly 
         Chia.  The exhibits received into the evidence at the hearing are 
         listed in the prehearing report.
              According to the prehearing report, the parties have 
         stipulated to the following matters:
              1.  On June 13, 1985, claimant received an injury which 
         arose out of and in the course of his employment with Purolator;
              2.  Claimant is not seeking additional temporary total 
         disability or healing period benefits in this proceeding;
              3.  If the injury is found to have caused permanent 
         disability, the type of disability is an industrial disability to 
         the body as a whole;
              4.  If permanent partial disability benefits are awarded 
         herein, they shall begin as of October 23, 1986;
              5.  Claimant's rate of weekly compensation in the event of 
         an award of weekly benefits from this proceeding shall be $302.82 
         per week; and,
              6.  All requested medical benefits have been or will be paid 
         by defendants.
              The parties submitted the following issues for determination 
         in this proceeding:
              I.  Whether there is a causal relationship between the work 
         injury and the claimed disability; and
             II.  The extent of claimant's entitlement to weekly benefits 
         for permanent disability.
                             SUMMARY OF THE EVIDENCE
              After a review of the entire record, it appears that 
         claimant has submitted a proposed "Statement of Facts" in his 
         brief that fairly summarizes the evidence presented and is 
         reiterated below with some wording changes to improve 
         objectivity.  Whether or not specifically referred to in this 
         summary, all of the evidence received at the hearing was 
         considered in arriving at this decision.  As will be the case in 
         any attempted summarization, conclusions about what the evidence 
         offered may show are inevitable.  Such conclusions, if any, in 
         the following summary should be considered as preliminary 
         findings of fact.
              Claimant is 49 years of age, married and claims one 
         dependent.  He quit Dowling High School in Des Moines in the 
         eleventh grade, has no other formal education and is of Hispanic 
              Claimant testified that his work history consisted of 
         various labor and construction jobs beginning with part-time work 
         at a vegetable farm in Polk County during summers while in high 
         school.  After high school claimant worked at the Iowa Packing 
         House doing heavy labor for one and one-half years and then went 
         to work briefly for the Des Moines Union Railroad on a section 
         gang.  In 1958 claimant started with Union Local 77 and did 
         general labor and heavy construction work for ten years before 
         commencing his employment with Purolator in December of 1968.
              Claimant started out at Purolator as a part-time sorter and 
         driver.  Within one year he was promoted to the position of 
         dispatcher, a position which involved loading and unloading of 
         trucks.  Claimant has at all times during his employment with 
         Purolator maintained a good work record.
              On November 16, 1978, claimant injured his lower back when 
         he tripped over a hoist at Purolator and underwent a laminectomy 
         performed by Joshua D. Kimelman, D.O., in August of 1979.  He 
         thereafter received a 10 percent permanent partial impairment 
         rating from Dr. Kimelman and was given weight and lifting 
         restrictions.  Claimant then returned to work with Purolator in 
         November of 1979 in a light duty dispatcher position involving 
         general supervision of loading and unloading trucks with only 
         occasional light lifting.
              Claimant testified that in late May of 1985, Purolator went 
         through a management change and a reduction of personnel wherein 
         many of claimant's subordinates were laid off.  Claimant was 
         informed by his new supervisor that he would be required to help 
         load and unload trucks as he had done before his 1978 surgery 
         despite his lifting restrictions, or he would lose his job.  
         Claimant testified that he had no choice but to comply with this 
         mandate and did so.
              On June 13, 1985, while unloading 140-150 pound packages of 
         tractor parts from a truck during the course of his employment at 
         Purolator, claimant testified he felt a "snap" in his lower back 
         and experienced considerable pain.  That day he consulted Dr. 
         Kimelman who told him to take some time off.  Thereafter, 
         claimant attempted to go back to work but after four days had to 
         stop again due to the pain.  For the next four months claimant 
         received conservative treatment and therapy through Dr. Kimelman 
         and at Iowa Lutheran Hospital.  Claimant's condition having not 
         improved by November of 1985, he underwent a second surgery to 
         the L5-Sl area on November 26, 1985.  Claimant has not worked 
         since June of 1985.
              Claimant testified he received no other injuries and was 
         involved in no accidents or mishaps between 1979 and June of 
         1985.  He stated that he had no problems whatsoever with his back 
         at the time of the injury on June 13, 1985.
              Claimant contends that the second surgery had an 
         unsatisfactory result in that he has at all times since suffered 
         severe pain and discomfort.  Claimant stated that since the 
         second surgery, he has tried numerous physical therapy and pain 
         management programs, all without success.  In January of 1986, 
         claimant received physical therapy through Dr. Kimelman's office 
         and in May of 1986, attempted the pain clinic in Des Moines under 
         the supervision of James L. Blessman, M.D.  Claimant said that he 
         was unable to participate in the program due to the pain.  
         Claimant himself then contacted Family Fitness and with Dr. 
         Kimelman's permission underwent a swimming, walking and exercise 
         program for a period of approximately nine months, but states 
         that he received only temporary relief.  Claimant was then 
         enrolled in the Iowa Methodist Sports Clinic where he performed 
         exercises three and one-half to four hours per day for six weeks.  
         Stating that he was unable to get out of bed and in considerable 
         pain by the end of the sixth week, claimant discontinued his 
         treatment at the Methodist Sports Clinic under the advice of Dr. 
              Although no longer involved with a professional physical 
         therapy organization or work hardening program, claimant still 
         tries to perform the exercises Dr. Kimelman taught him on a daily 
         basis, including arm and shoulder rotation, leg pulls, and 
         sit-ups.  Despite these efforts, claimant testified that he 
         continues to be in constant, excruciating pain.  Claimant 
         describes the pain as starting at the belt level in the lower 
         back and traveling all the way down his left leg, where he also 
         experiences numbness and tingling.  He has the same problems in 
         his left leg down to his knee.
              Claimant testified that he cannot bend, stoop or squat and, 
         unless he is sitting in a recliner his children bought him, he 
         cannot sit for more than 10 to 15 minutes without experiencing 
         considerable pain and discomfort.  He cannot lift any weight from 
         the floor and is unable to lift or maneuver objects from a table 
         or desk.  He cannot do chores around the house and cannot drive.  
         Claimant testified that he cannot walk more than a block without 
         having to sit down.  Claimant testified that in a typical day he 
         merely stays around the house reading or watching television 
         until his wife, Molly, comes home from her work as a nursing home 
         worker in the evening.
              Claimant testified that he can sleep only two and one-half 
         hours at a time at night and often merely paces the floor or 
         tries to read Reader's Digest or newspapers.  He sometimes 
         attempts to gain relief by sleeping on the floor.
              The evidence and testimony reveals that claimant is 
         currently taking medication consisting of 7.5 milligrams of 
         Tranxene and Darvocet N 100 every four hours.  Claimant testified 
         that the medication gives him only temporary relief and makes him 
         feel numb all over.
              Claimant contends that his physical condition since the 
         second surgery has had a considerable emotional and psychological 
         impact.  Claimant testified that before 1985 he enjoyed hunting, 
         fishing and coaching softball, but that he is no longer able to 
         do these things.  Claimant testified that now he is always tense 
         and irritable and that he has difficulty being around people, 
         often being harsh with his wife and grandchildren for no reason. 
          Claimant also testified that he has considerable difficulty 
         concentrating and comprehending, often forgetting things told him 
         or things he tries to read.  Molly Chia testified that claimant 
         is a changed man since the second surgery.  Claimant testified 
         that he feels useless because he cannot work.
              Dr. Kimelman, orthopedic surgeon, testified by deposition 
         that he first became involved with claimant in November of 1978 
         due to claimant's work related injury during that year.  After 
         initially attempting conservative therapy without success, Dr. 
         Kimelman conducted a lumbar myelogram which at that time was 
         equivocal.  Instead of recommending surgery, Dr. Kimelman at that 
         time recommended that claimant lose 40 to 50 pounds, which 
         claimant did.  A lumbar laminectomy was then performed by Dr. 
         Kimelman on August 1, 1979 which was successful.
              Dr. Kimelman released claimant to return to work in 
         September of 1979 with light duty restrictions contemplating no 
         bending, stooping or lifting over 25 pounds.  During the next 18 
         months Dr. Kimelman saw claimant on six occasions when claimant 
         complained of some discomfort.  The last time Dr. Kimelman saw 
         claimant prior to the second accident was on April 8, 1981, at 
         which time it was noted that claimant's symptoms had subjectively 
              Dr. Kimelman then saw claimant on June 19, 1985, at which 
         time claimant reported low back pain and left leg radiation 
         occurring subsequent to his change of duties at work.  
         Conservative therapy was attempted over the next few months and a 
         CT scan was performed at Lutheran Hospital in August of 1985.  
         Claimant was admitted to Mercy Hospital on November 11, 1985 and 
         a repeat surgical exploration of his L5-Sl disc space was 
         performed on November 26, 1985 with a post-operative diagnosis of 
         degenerative arthritis with scar formation.
              Dr. Kimelman testified that scar tissue formation from this 
         prior surgery sensitized the area to further injury and that 
         although in retrospect the aggravated symptoms presented to him 
         in November of 1985 were probably more attributable to scar 
         tissue formation rather than increased disc herniation, the 
         claimant's condition did not improve after the operation and has 
         now been compounded by chronic pain syndrome.
              The last time Dr. Kimelman saw claimant was on December 18, 
         1987.  X-rays revealed a degenerative disc disease at the L5-Sl 
         level and Dr. Kimelman"s diagnosis was a failed lumbar disc 
         syndrome with chronic pain syndrome.  There is nothing further 
         that can be done medically.
              Based upon the history given by the claimant, the physical 
         examination and the treatment of the claimant, Dr. Kimelman 
         testified to a reasonable degree of medical certainty that (1) 
         claimant had sustained a material aggravation to a preexisting 
         back condition while performing bending and lifting at his place 
         of employment in June of 1985; (2) that the symptoms that arose 
         from the June, 1985, incident resulted in claimant having the 
         lumbar surgery in November of 1985; (3) claimant sustained a 15 
         percent permanent functional impairment as a result of the work 
         related incident that occurred in June of 1985; and, (4) 
         claimant's chronic pain syndrome was causally related to the 
         June, 1985, work-related incident.
              Dr. Kimelman further testified that claimant's total current 
         permanent impairment is 25 percent, that he believed claimant was 
         truthful in reporting his symptoms and difficulties and that 
         claimant is now two and one half times worse than he was after 
         the first surgery in 1979.  In Dr. Kimelman's s opinion, it is 
         extremely unlikely that claimant would improve to the point that 
         he would be gainfully employed in the future.
              Dr. Robert C. Jones, M.D., testified by deposition that he 
         examined claimant on December 4, 1986 at which time he took a 
         history from claimant consistent with the facts presented by 
         claimant at hearing   Review of x-rays, a myelogram and a CT scan 
         taken of claimant's lower back area in September of 1986 
         indicated to Dr. Jones a herniated disc at the lower lumbar on 
         the left with some clumping of the roots.  Based upon his 
         examination of claimant, the history taken and the materials 
         provided him, Dr. Jones formed a diagnosis of a failed lumbar 
         disc syndrome and depression.  Dr. Jones also was of the opinion 
         that claimant had a residual disc herniation at the lumbosacral 
         area on the left with some scar tissue.
              Dr. Jones also concurred with Dr. Kimelman's assessment of a 
         25 percent functional impairment of the body as a whole with 10 
         percent being attributable to the 1978 injury.  Noting from the 
         history taken that claimant was doing well before the second 
         injury, Dr. Jones related claimant's current problems to the 1985 
         injury and not to an ongoing.process from the 1978 surgery.  Dr. 
         Jones testified that the 25 percent rating represented a 
         significant impairment and that because of the amount of pain 
         claimant was experiencing, vocational rehabilitation would be 
         difficult.  Dr. Jones also testified that claimant suffered from 
         chronic pain syndrome, and that it may be beneficial to explore 
         this with a psychiatrist.  In Dr. Jones' opinion, claimant 
         probably will never be able to return to work duties and that his 
         back and leg pain will keep him from working or being gainfully 
         employed indefinitely.
              Dr. W. Wayne Sands, M.D., a psychiatrist, testified that he 
         met with claimant on December 3, 1987, for the purpose of 
         psychiatric evaluation and administration of psychiatric testing. 
          Dr. Sands testified that claimant's psychological profile did 
         not reveal that he was mentally ill or psychotic.  Dr. Sands 
         further testified that claimant was not a candidate for 
         psychotropic medication and that he was not malingering.  
         Claimant presented no history of any treatment for any 
         psychological problems prior to June, 1985.
              Based upon his psychiatric evaluation of the claimant, the 
         history taken and the psychological testing performed, Dr. Sands 
         formulated a diagnosis of depressive Somatization Disorder, i.e., 
         psychological conflicts which translate into symptoms.
              Dr. Sands testified that claimant suffers from a 60 percent 
         psychological impairment according to the AMA Guidelines, thus 
         representing a substantial impairment.  While recognizing that 
         claimant had some underlying propensity towards depression prior 
         to June of 1985, Dr. Sands related no less than 50 percent of the 
         claimant's psychological impairment to the June, 1985 work 
         related accident.  He was of the further opinion that his 
         underlying sensitivities were triggered by the said injury.  Dr. 
         Sands also testified that claimant's psychological impairment 
         will be permanent, noting that while medication and family 
         counseling might temporarily take the edge off claimant's 
         anxiety, it will never get better.
              Marvin Krause, a recently retired vocational rehabilitation 
         specialist with the Iowa Department of Education, testified that 
         he met with claimant before his retirement on December 14, 1987, 
         for the purposes of attempting to locate employment alternatives. 
          Having worked with numerous disabled individuals while employed 
         with the Department of Education, Mr. Krause determined that 
         claimant's physical impairment was too severe for him to derive 
         any benefit from what the department had to offer and for this 
         reason screened him out after the one interview.  Mr. Krause 
         testified that his review of medical reports by Dr. Kimelman, Dr. 
         Jones and Dr. Sands since the interview corroborates his opinion 
         that claimant is incapable of obtaining and maintaining any type 
         of gainful employment of any nature given claimant's prior work 
         history, medical and psychological condition and education.
              Also testifying as to claimant's vocational prospects was 
         Howard Shelby Swain, a former workers' compensation supervisor at 
         Traveler's Insurance and most recently a rehabilitation 
         consultant with Management Consulting and Rehabilitation 
         Services.  Requested by Liberty Mutual to prepare a general 
         assessment of employability and job placement, Mr. Swain met with 
         claimant in October of 1986 for one and one half hours and had at 
         least three contacts with him thereafter, the last being on 
         November 25, 1987.  Mr. Swain testified that he found claimant to 
         be most cooperative and that he expressed a great desire to 
         return to work at Purolator if his physical condition were to 
         improve, but Purolator would not hire him back.  This was 
         confirmed when a representative from Liberty Mutual informed Mr. 
         Swain that no job possibility was available for him at Purolator.  
         Having had an opportunity to review the medical documentation 
         from Dr. Kimelman, Dr. Jones, and Dr. Sands; and based upon 
         factors such as claimant's age, demeanor, prior employment 
         history, and lack of transferable skills, Mr. Swain testified 
         that claimant now has a substantial impairment that would make it 
         less likely than more likely for him to find any type of full 
         time competitive employment.  Additionally, Mr,.  Swain testified 
         that given his understanding of claimant's lifting restrictions 
         after his first surgery and the fact that he did thereafter 
         actually return to work at Purolator, he did not consider 
         claimant industrially disabled prior to the second injury.
              In addition to the above summary, it should be noted by the 
         undersigned that claimant's appearance and demeanor at hearing 
         and that of his wife indicated that they were testifying in a 
         candid and truthful manner.
                           APPLICABLE LAW AND ANALYSIS
              I.  The claimant has the burden of proving by a 
         preponderance of the evidence that the work injury is a cause of 
         the claimed disability.  A disability may be either temporary or 
         permanent.  In the case of a claim for temporary disability, the 
         claimant must establish that the work injury was a cause of 
         absence from work and lost earnings during a period of recovery 
         from the injury.  Generally, a claim of permanent disability 
         invokes an initial determination of whether the work injury was a 
         cause of permanent physical impairment or permanent limitation in 
         work activity.  However, in some instances, such as a job 
         transfer caused by a work injury, permanent disability benefits 
         can be awarded without a showing of a causal-connection to a 
         physical change of condition.  Blacksmith v. All-American, Inc., 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
         288 N.W.2d 181 (Iowa 1980).
              The question of causal connection is essentially within the 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
         experts need not be couched in definite, positive or unequivocal 
         language and the expert opinion may be accepted or rejected, in 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
         such an opinion is for the finder of fact, and that may be 
         affected by the completeness of the premise given the expert and 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
         Iowa 516, 133 N.W.2d 867 (1965).
              Furthermore, if the available expert testimony is 
         insufficient along to support a finding of causal connection, 
         such testimony may be coupled with nonexpert testimony to show 
         causation and be sufficient to sustain an award.  Giere v. Asse 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
         Such evidence does not, however, compel an award as a matter of 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
         1974).  To establish compensability, the injury need only be a 
         significant factor, not be the only factor causing the claimed 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
         preexisting condition, an employee is not entitled to recover for 
         the results of a preexisting injury or disease but can recover 
         for an aggravation thereof which resulted in the disability found 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
         N.W.2d 251 (1963).
              In the case sub judice, claimant has established by 
         uncontroverted medical evidence That he suffered a 15 percent 
         permanent partial impairment to the body as a whole from an 
         injury on June 13, 1985.
              II.  Claimant must establish by a preponderance of the 
         evidence the extent of weekly benefits for permanent disability 
         to which claimant is entitled.  As the claimant has shown that 
         the work injury was a cause of a permanent physical impairment or 
         limitation upon activity involving the body as a whole, the 
         degree of permanent disability must be measured pursuant to Iowa 
         Code section 85.34(2)(u).  However, unlike scheduled member 
         disabilities, the degree of disability under this provision is 
         not measured solely by the extent of a functional impairment or 
         loss of use of a body member.  A disability to the body as a 
         whole or an "industrial disability" is a loss of earning capacity 
         resulting from the work injury.  Diederich v. Tri-City Railway 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
         impairment or restriction on work activity may or may not result 
         in such a loss of earning capacity.  The extent to which a work 
         injury and a resulting medical condition has resulted in an 
         industrial disability is determined from examination of several 
         factors.  These factors include the employee's medical condition 
         prior to the injury, immediately after the injury and presently; 
         the situs of the injury, its severity and the length of healing 
         period; the work experience of the employee prior to the injury, 
         after the injury and potential for rehabilitation; the employee's 
         qualifications intellectually, emotionally and physically; 
         earnings prior and subsequent to the injury; age; education; 
         motivation; functional impairment as a result of the injury; and 
         inability because of the injury to engage in employment for which 
         the employee is fitted.  Loss of earnings caused by a job 
         transfer for reasons related to the injury is also relevant.  
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
         28, 1985).
              Claimant's medical condition before the work injury was 
         certainly not excellent and he had functional impairments and a 
         probable industrial disability before June of 1985 due to 
         permanent restrictions imposed upon him against bending, stooping 
         or lifting over 25 pounds.  However, claimant was able to fully 
         perform physical tasks involving light repetitive lifting, 
         bending and prolonged standing and sitting.  As a result of the 
         painful injury on June 13, 1985 and subsequent surgery, claimant 
         may have a similar physician imposed restrictions as before but 
         now is much more severely disabled in his ability to walk, stand 
         or sit.  Also, claimant has experienced almost continuous pain in 
         varying degrees since the date of injury which was not the case 
         after the earlier 1978 injury and surgery.  This pain has 
         resulted in chronic pain syndrome which aggravates the pain even 
         more and greatly increases the disability by affecting claimant's 
         mind and ability to concentrate.
              Claimant's physicians now have restricted claimant's work 
         activities by prohibiting not only heavy lifting but any form of 
         repetitive lifting, bending, twisting or prolonged sitting and 
         standing for even short periods of time.
              Claimant's mental and physical condition prevents him from 
         returning to his former work or any other work which claimant 
         performed in the past or for which he is best suited given his 
         lack of formal education and intellectual abilities.
              Claimant is 47 years of age and should be in the most 
         productive years of his working life.  Consequently, his loss of 
         future earnings from employment due to his disability is more 
         severe than would be the case for a younger or an older 
         individual.  See Becke v. Turner-Busch, Inc., Thirty-Fourth 
         Biennial Report of the Iowa Industrial Commissioner 34 (Appeal 
         Decision 1979).  See also Walton v. B & H Tank Corp., II Iowa 
         Industrial Commissioner Reports 426 (Appeal Decision 1981).
              Claimant has only an eleventh grade education and exhibits 
         below average intelligence at hearing.  According to vocational 
         rehabilitation counselors involved in this case, claimant had 
         little or no potential for vocational rehabilitation.  This lack 
         of potential is due to his severe physical problems; claimant's 
         mental problems which stem from the work injury; and, his lack of 
         educational skills in reading, spelling and math.  Claimant 
         simply cannot concentrate due to pain.  The consensus of 
         vocational counseling in this case is that claimant is not 
         employable in any capacity.
              Claimant pleads the odd-lot doctrine which is a procedural 
         device to shift the burden to defendants in alleged permanent 
         total disability cases where claimant is able to perform light 
         duty work but has made an unsuccessful effort to find such work. 
          The undersigned does not have to resort to the odd-lot doctrine 
         in this case to award permanent total disability as claimant is 
         physically and mentally incapable of performing even light duty 
         sedentary work.
              After examination of all the factors, it is found as a 
         matter of fact that claimant has suffered a 100 percent loss of 
         his earning capacity from his work injury of June 13, 1985.  
         Based upon such a finding, claimant is entitled as a matter of 
         law to permanent total disability benefits under Iowa Code 
         section 85.34(3) for an indefinite period of time beginning on 
         the date of injury.
              Defendants seek an apportionment of disability in this case 
         between claimant's preexisting condition and the work injury of 
         June, 1985.  Such an apportionment may be proper when there is 
         some ascertainable disability which existed independent of the 
         injury before the injury occurred.  Varied Enterprises, Inc. v. 
         Sumner, 353 N.W.2d 407 (Iowa 1984).  Although a portion of 
         claimant's current disability may be attributable to medical 
         conditions prior to 1985, an employer still takes an employee as 
         they occur when they are employed with all their prior faults and 
         problems.  Furthermore, an apportionment is not appropriate or 
         possible in a permanent total disability case because the 
         benefits are not payable for a definite period of time under Iowa 
         Code section 85.34(2) but are paid for an indefinite period of 
         time during the period of claimant's disability.  Admittedly, 
         claimant's work injury may be a contributing factor.  However, 
         the June, 1985 injury was the proverbial "straw that broke the 
         camel's back" and permanent total disability benefits shall be 
         awarded accordingly.
                                 FINDINGS OF FACT
              The proposed findings of fact submitted by claimant are 
         adopted in their entirety and are reiterated below:
              1.  Claimant and his wife were found to be credible 
         witnesses from their appearance and demeanor on the stand.
              2.  Claimant was in the employ of Purolator Courier 
         Corporation at all times material herein.
              3.  On June 13, 1985, claimant suffered an injury to his low 
         back which arose out of and in the course of his employment with 
         Purolator.  This injury consisted of a reinjury to the claimant's 
         lower spine which eventually required surgery.  That said injury 
         and subsequent surgery has left his back and body as a whole 
         permanently, functionally impaired.
              4.  Prior to the work injury of June, 1985, claimant had 
         sustained a prior work injury on November 16, 1978, that resulted 
         in surgery and some physical restrictions but claimant eventually 
         recovered from that injury and was able to return to work with 
         the defendant in a modified job position.  There was no evidence 
         of any decrease in wages from 1982 through 1985, the date of this 
         incident.  The claimant's wages increased from $18,807 in 1982 to 
         $20,985 in 1984.
              5.  That before the June, 1985 work related injury the 
         claimant was able to perform his work as a dispatcher with 
         Purolator, but after said date, he has been physically unable to 
         resume such work.
              6.  Claimant has sustained a substantial psychological 
         impairment as a result of the June, 1985 work related injury.
              7.  That the work injury of June, 1985, was a cause of a 15 
         percent permanent partial impairment to the body as a whole in 
         addition to the 10 percent permanent partial impairment of the 
         body as a whole that the claimant suffered in the 1978 work 
         related injury.  Therefore, claimant's permanent partial 
         impairment at present is 25 percent.
              8.  Claimant cannot sit, stand, ride in a car, or remain in 
         a single position for any length of time, in excess of 15 minutes 
         without changing positions.
              9.  As a result of his functional impairment and physical 
         restrictions claimant is unable to return to any of his prior 
         work activities or any other gainful employment.
             10.  Claimant's work history consists of gainful regular 
         employment as a vegetable farm worker, packing plant laborer, 
         railway section gang worker and general construction worker 
         before commencing employment with Purolator in 1968 as a 
         dispatcher and handler.
             11.  Claimant has constant pain in his low back and legs 
         which affects his concentration and comprehension abilities.
             12.  Claimant has suffered a total loss in actual earnings 
         from employment due to his work injury.
             13.  Claimant is adequately motivated to find suitable 
         alternative employment, but is not able physically or mentally to 
         perform any gainful employment.
             14.  Claimant is 49 years of age and has an eleventh grade 
         education and has limited intellectual skills.
             15.  Claimant has no potential for successful vocational 
             16.  As a result of his work injury, claimant has suffered a 
         total loss of earning capacity.
             17.  Pursuant to the stipulation of the parties, claimant's 
         rate of compensation for this injury is $302.87 per week and he 
         has not worked since June of 1985.
             18.  The work injury of June, 1985, and the resulting 
         permanent partial impairment, is a cause of permanent and total 
         loss earning capacity.
              1.  Defendants shall pay to claimant permanent total 
         disability benefits for an indefinite period of time from June 
         13, 1985 during the period of claimant's disability.
              2.  Defendants shall pay accrued weekly benefits in a lump 
         sum and shall receive credit against this award for all benefits 
         previously paid.
              3.  Defendants shall pay interest on weekly benefits awarded 
         herein as set forth in Iowa Code section 85.30.
              4.  Defendants shall pay the costs of this action pursuant 
         to Division of Industrial Services Rule 343-4.33.
              5.  Defendants shall file activity reports on the payment of 
         this award as requested by this agency pursuant to Division of 
         Industrial Services Rule 343-3.1.
              Signed and filed this 17th day of November, 1988.
                                          LARRY P. WALSHIRE
                                          DEPUTY INDUSTRIAL COMMISSIONER
         Copies To:
         Mr. Thomas P. Schlapkohl
         Attorney at Law
         1906 Ingersoll Ave.
         Suite E
         Des Moines, Iowa  50317
         Mr. Larry D. Krpan
         Attorney at Law
         3100 Ingersoll Ave.
         Des Moines, Iowa 50312
         Mr. Richard G. Book
         Attorney at Law
         1000 Des Moines Bldg.
         Des Moines, Iowa 50309
                                                 1804; Apportionment of
                                                 Disability (1806)
                                                 Filed November 17, 1988
                                                 LARRY P. WALSHIRE
         MARION CHIA,
         vs.                                          File No. 796436
         PUROLATOR COURIER CORP.                  A R B I T R A T I 0 N
               Employer,                              D E C I S I 0 N
              Insurance Carrier,
         1804; Apportionment of Disability (1806)
              Permanent total disability benefits were awarded to a 49 
         year old high school drop out for a low back injury.  The odd-lot 
         doctrine was not utilized as claimant was found to be incapable 
         of even light duty work due to physical and mental problems 
         aggravated by chronic pain syndrome.
              Despite the probability of a prior industrial disability due 
         to a prior work injury, an apportionment of disability was not 
         made in this case.  It was held that an apportionment is not 
         possible in a permanent total disability case because benefits 
         are not awarded for a definite time period but for an indefinite 
         time during claimant's disability.  There is no prior agency 
         appeal decision on this point but this has been the agency view 
         for the last several years and several deputy decisions have so 
         field in the past.
                                                    File No. 796651
                                                A R B I T R A T I 0 N
         FDL FOODS, INC.,
                                                    D E C I S I 0 N
              This is a proceeding in arbitration brought by Mark A. Van 
         Blarcom against FDL Foods, Inc., his self-insured employer.  The 
         case was heard and fully submitted at Dubuque, Iowa on December 
         15, 1987.  The record in this proceeding consists of testimony 
         from Mark A. Van Blarcom, joint exhibits 1 and 2 and claimant's 
         exhibit A.
              The only issue presented by the parties for determination is 
         the nature and extent of claimant's permanent partial disability. 
          It was stipulated that Van Blarcom had sustained an injury in 
         the nature of carpal tunnel syndrome which arose out of and in 
         the course of his employment on or about May 14, 1985, that his 
         healing period ran from June 7, 1985 to September 8, 1985 and had 
         been fully paid and that his rate of compensation is $85.17 per 
                               SUMMARY OF EVIDENCE
              The following is a summary of evidence presented in this 
         case.  Only the evidence most pertinent to this decision is 
         discussed, but all of the evidence received at the hearing was 
         considered in arriving at this decision.  Conclusions about what 
         the evidence showed are inevitable with any summarization.  The 
         conclusions in the following summary should be considered to be 
         preliminary findings of fact.
              Mark A. Van Blarcom is a 26-year-old man who has been 
         employed by FDL Foods, Inc. since October 18, 1984. in 1985, he 
         developed right carpal tunnel syndrome and was referred to L. 
         C. Faber, M.D., for treatment.  After attempts at conservative 
         treatment were unsuccessful, carpal tunnel release surgery was 
         Page   2
         performed on July 26, 1985 (exhibit 1, pages 1, 4 and 10).  Dr. 
         Faber released claimant to return to work on September 9, 1985 
         (exhibit page 23).
              Claimant testified that the surgery did not completely 
         resolve his symptoms, but that, in the weeks following surgery, 
         he noticed a decrease in numbness and a return of his grip 
         strength.  Claimant exhibited the scar on his right hand which 
         ran into the palm of his hand and also approximately one and 
         one-half inches from the base of the palm toward the wrist and 
              Claimant testified that he continues to have difficulties 
         with his right hand and arm.  He stated that numbness has 
         returned and that now it includes all the fingers of his hand 
         and runs up his forearm, at times even to his shoulder.  Van 
         Blarcom stated that, at times, he has jolts which feel like an 
         electrical shock which run throughout his entire arm.  He 
         stated that they start in the elbow and move in both 
         directions, going to the shoulder and also to his hand.  He 
         stated that jolting can be produced by fully flexing or 
         extending his right wrist.
              Claimant has bid on different positions and, at the 
         present time, pushes carcasses in the cooler.  He stated that, 
         in view of the type of work he now performs, his symptoms are 
         less frequent and less severe than they were at times when he 
         performed knife work.  Claimant stated that the scar does not 
         restrict his wrist.
              In response to his complaints, claimant was referred to A. 
         Sterrett, M.D., a neurologist, who felt that claimant was 
         suffering from recurrent right carpal tunnel syndrome.  He 
         Page   3
         suggested reexploration of the carpal tunnel (exhibit 1, pages 
         24 and 25).
              On June 26, 1986, Anthony J. Piasecki, M.D., issued a 
         report in which he indicated that claimant has had carpal 
         tunnel syndrome of his right wrist and that he has residual 
         findings.  Using the AMA tables on impairment of function, Dr. 
         Piasecki assigned claimant an impairment rating of 11% of his 
         right upper extremity (claimant's exhibit A).
              Claimant was also referred to William F. Blair, M.D., for 
         an evaluation.  On March 6, 1987, Dr. Blair issued a report 
         which indicates that claimant has a persistent activity-related 
         median neuropathy with an associated measurable decrease in 
         sensibility in the right hand.  Dr. Blair rated claimant as 
         having a five percent permanent functional impairment of the 
         right hand, a figure which he indicated was equivalent to a 
         five percent impairment of the right upper extremity.
                         APPLICABLE LAW AND ANALYSIS
              In view of the stipulation made by the  parties, the extent 
         of permanent partial disability is the only issue to be 
         determined.  Contained within that issue is whether the  
         disability  is  limited to the hand or extends into the arm.  The 
         fact that Dr. Piasecki gave his rating as an impairment of the 
         upper extremity is not necessarily an indication that impairment 
         exists beyond the hand.  Physicians commonly rate carpal tunnel 
         syndrome impairment alternately as either an impairment of the 
         hand or as an impairment of the upper extremity, regardless of 
         the actual precise location of the impairment.  Additionally, 
         when the AMA guides are used to convert impairments between the 
         hand and the arm, the net result when awarding compensation 
         generally varies little regardless of whether the impairment is 
         treated as one of the hand or of the arm.
              The operative report found at exhibit 1, page 10 indicates 
         that the annular ligament was incised.  The annular ligament is 
         anatomically located distally to the distal end of the radius and 
         ulna.  It is located in an area that is considered to be part of 
         the wrist.  The wrist is considered to be part of the hand.  Elam 
         v. Midland Manufacturing, II Iowa Industrial Commissioner Report, 
         141 (App.  Decn. 1981).  None of the physicians in the case have 
         identified anything in their reports which indicates that 
         claimant has any physical ailment, abnormality or derangement 
         that extends beyond the wrist and into the arm.  Accordingly, 
         claimant's disability should be evaluated as a disability of the 
         Page   4
         right hand.  Lauhoff Grain Company v. McIntosh, 395 N.W.2d 834 
         (Iowa 1986).
              Dr. Blair's ratings do not appear to be inconsistent with 
         table 9 which is found at page 10 of the second edition of the 
         Guides to the Evaluation of Permanent Impairment.  It shows a 
         five percent impairment of the hand to be equivalent to a five 
         percent impairment of the upper extremity.  Dr. PiaseckiOs 11% 
         impairment rating of the upper extremity is shown, in that same 
         table, to be equivalent to a 12% impairment of the hand.  
         Impairment ratings of the hand are easily converted to an 
         equivalent impairment rating of the upper extremity and vice 
         versa using the table in the guides.  Division of Industrial 
         Services Rule 343-2.4.  Agency experience and expertise shows 
         that an impairment rating, following carpal tunnel surgery,.of 
         five percent of the hand or less usually indicates a favorable 
         result from surgery.  Impairment ratings of 10% of the hand or 
         greater usually indicate a surgery that was not completely 
         successful.  Claimant's appearance and demeanor was observed as 
         he testified.  His testimony concerning his complaints is 
         accepted as being correct.  The rating from Dr. Piasecki is found 
         to be more consistent with claimant's continuing symptoms and 
         complaints than the rating from Dr. Blair.  Nevertheless, when 
         considering all the evidence in the case, it is determined that 
         claimant has a 10% loss of use of his right hand as a result of 
         the carpal tunnel syndrome.  This entitles him to receive 19 
         weeks of compensation for permanent partial disability.  Payment 
         of those 19 weeks was due commencing at the end of the healing 
         period, in this case, on September 10, 1985.  Claimant is also 
         entitled to recover interest on the unpaid compensation at the 
         rate of 10% per annum computed from the date each payment came 
         due until the date of actual payment.  Teel v. McCord, 394 N.W.2d 
         405 (Iowa 1986).
                                 FINDINGS OF FACT
              1.  Mark A. Van Blarcom has a 10% loss of use of his right 
         hand as a result of the carpal tunnel syndrome which he incurred 
         through his employment with FDL Foods, Inc.
              2.  Even though claimant experiences symptoms in his arm, 
         the physical impairment and anatomical derangement is located in 
         his hand.
                                CONCLUSIONS OF LAW
              1.  This agency has jurisdiction of the subject matter of 
         this proceeding and its parties.
              2.  Claimant's disability should be evaluated as disability 
         to the hand under Iowa Code section 85.34(2)(1).
              3.  Claimant is entitled to receive 19 weeks of compensation 
         representing a 10% loss of use of the hand.
         Page   5
              IT IS THEREFORE ORDERED that defendant pay claimant nineteen 
         (19) weeks of compensation for permanent partial disability at 
         the stipulated rate of eighty-five and 17/100 dollars ($85.17) 
         per week payable commencing September 10, 1985.
              IT IS FURTHER ORDERED that the entire amount thereof is past 
         due and shall be paid to claimant in a lump sum together with 
         interest at the rate of ten percent (10%) per annum computed from 
         the date each payment came due until the date of actual payment.
              IT IS FURTHER ORDERED that the costs of this action are 
         assessed against the defendant, including the sum of ninety-nine 
         and 50/100 dollars ($99.50) for a written report from Dr. 
         Piasecki, pursuant to Division of Industrial Services Rule 
              IT IS FURTHER ORDERED that defendant file a Claim Activity 
         Report within ninety (90) days from the date of this decision.
              Signed and filed this 16th day of May, 1988.
                                             MICHAEL G. TRIER
                                             DEPUTY INDUSTRIAL COMMISSIONER
         Copies To:
         Mr. Louis P. Pfeiler
         Attorney at Law
         Washington Park Law Building
         679 Bluff Street
         Dubuque, Iowa 52001
         Mr. David C. Bauer
         Mr. James M. Heckmann
         Attorney at Law
         One CyCare Plaza, Suite 216
         Dubuque, Iowa 52001
                                                     Filed May 16, 1988
                                                     MICHAEL G. TRIER
                                                     File No. 796651
                                                  A R B I T R A T I 0 N
         FDL FOODS, INC.,
                                                     D E C I S I 0 N
              The only dispute in the case was the extent of permanent 
         partial disability and whether it was to the hand or to the arm. 
          The injury was development of carpal tunnel syndrome.  The 
         claimant had a relatively unsuccessful result from surgery.  
         Where the impairment ratings ranged front 11% of the upper 
         extremity to 5% of the hand, it was held that claimant had a 10% 
         permanent partial disability of the hand.