before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JERRY EVANS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 798259
 
            HENNINGSEN CONSTRUCTION CO.,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                              statement of the case
 
            
 
                 Claimant appeals from an arbitration decision awarding 
 
            claimant healing period and permanent partial disability 
 
            benefits based on a 25 percent industrial disability.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing, joint exhibits 1 through 15, and 17 
 
            through 24.  Both parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Claimant states the issues on appeal are:
 
            
 
                 I.   The deputy erred by finding an industrial 
 
                 disability significantly less than the functional 
 
                 impairment of American Medical Association, Guides 
 
                 to the Evaluation of Permanent Impairment.
 
            
 
                 II.  The award of 25% industrial disability being 
 
                 less than the functional impairment is not 
 
                 supported by sufficient findings or evidence.
 
            
 
                 III. The deputy erred in fixing the industrial 
 
                 disability less than the functional impairment.
 
            
 
                  
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            review of the evidence
 
            
 
                 The arbitration decision dated December 22, 1988 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                 Division of Industrial Services Rule 343-2.4 
 
                 states:
 
            
 
                    The Guides to the Evaluation of Permanent 
 
                 Impairment published by the American Medical 
 
                 Association are adopted as a guide for determining 
 
                 permanent partial disabilities under Iowa Code 
 
                 section 85.34(2)"a"-"r."
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted.
 
            
 
                 Division of Industrial Services Rule 343-2.4 states 
 
            that the AMA Guides to the Evaluation of Permanent 
 
            Impairment may be used to determine permanent partial 
 
            disability under Iowa Code section 85.34(2)"a"-"r."  
 
            Claimant contends that the AMA Guide should be used to 
 
            determine the extent of claimant's impairment.
 
            
 
                 Arnis Grundberg, M.D., has been claimant's treating 
 
            physician since June 5, 1986 and gave claimant a rating of 
 
            35 percent permanent impairment of the hand.  R. Schuyler 
 
            Gooding, M.D., assigned permanent partial disability as ten 
 
            percent of the body as a whole due to claimant's back 
 
            injury.  A rating of 35 percent permanent impairment of the 
 
            hand is not equivalent to 35 percent functional impairment 
 
            of the body as a whole.  A deputy is not compelled to use 
 
            the AMA Guides to determine functional impairment when 
 
            claimant's physicians have supplied the appropriate ratings.
 
            
 
                 First, claimant failed to make a prima facie showing of 
 
            42 percent functional impairment of the body as a whole.  
 
            Even if claimant had made a prima facie case of 42 percent 
 
            functional impairment, it is wrong to assume that industrial 
 
            disability is the same as ones functional impairment.  In 
 
            addition, claimant incorrectly contends that since he has 
 
            made a prima facie case of 42 percent functional impairment, 
 
            the burden shifts to the defendants.  A showing of 
 
            functional impairment does not entitle a finding of 
 
            industrial disability, nor does it shift the burden to the 
 
            defendants.  See Kellogg v. Shute and Lewis Coal Co., 256 
 
            Iowa 1257, 130 N.W.2d 667 (1964) and McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
            
 
                 Furthermore, claimant incorrectly argues that the 
 
            deputy erred in fixing industrial disability less than 
 
            functional impairment.  Functional impairment is merely one 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            factor to be considered in determining industrial 
 
            disability.  Industrial disability is comprised of a number 
 
            of factors which must be weighed in conjunction with 
 
            functional impairment.  See Petersen v. Iowa Beer & Liquor 
 
            Control Department, Vol. II-1 State of Iowa Industrial 
 
            Commissioner's Decisions 423 (1984).  Industrial disability 
 
            is not a calculation but an evaluation of the employee and 
 
            his injury.  Factors are not plugged into an equation to 
 
            determine industrial disability.  The deputy is to weigh all 
 
            the evidence presented to determine industrial disability.  
 
            Industrial disability may be more, equal to or less than 
 
            functional impairment, functional impairment does not limit 
 
            industrial disability.
 
            
 
                 The record supports the deputy's conclusion of 25 
 
            percent industrial disability.  Claimant was 30 years old at 
 
            the time of the hearing with average intelligence.  Claimant 
 
            has received his GED after his injury.  Physicians have 
 
            assigned functional impairment to claimant's right hand as 
 
            35 percent and 10 percent permanent partial disability to 
 
            the body as a whole due to claimant's back and neck injury.  
 
            Claimant is permanently restricted in pushing, pulling or 
 
            lifting over 20 pounds with his right hand.  There are no 
 
            restrictions as a result of claimant's back injury.  
 
            Claimant's attitude towards vocational retraining adversely 
 
            reflects upon claimant's motivation.  Claimant had one job 
 
            but quit due to the drive and paperwork involved with the 
 
            job.  Claimant continued to insist upon on-the-job training 
 
            rather than schooling and continued to apply for jobs which 
 
            were beyond his physical limitations.  Vocational counselor, 
 
            Alfred Marchisio, testified that claimant was employable 
 
            under his current physical restrictions and specified a 
 
            number of positions which claimant is qualified to perform.
 
            
 
                 While claimant is not capable of engaging in his former 
 
            occupation, he can use his expertise in construction to 
 
            obtain a sedentary position in the construction industry.  
 
            Evidence supports the deputy's decision of 25 percent 
 
            industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant sustained an injury which arose out of and 
 
            in the course of his employment on June 18, 1985.
 
            
 
                 2.  Claimant's injuries were to his hand and back.
 
            
 
                 3.  Claimant sustained a permanent injury to the body 
 
            as a whole.
 
            
 
                 4.  Claimant reached maximum medical recovery on 
 
            January 27, 1987.
 
            
 
                 5.  Claimant has a permanent impairment and permanent 
 
            work restriction as a result of the injury of June 18, 1985 
 
            which prohibits him from engaging in his regular occupation 
 
            of steelworker.
 
            
 
                 6.  Claimant, age 30, with an eleventh grade formal 
 
            education acquired his GED subsequent to his injury and has 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the qualifications, intellectually, emotionally and 
 
            physically to reenter the job market.
 
            
 
                 7.  Claimant's motivation is poor.
 
            
 
                 8.  Claimant suffered a loss of earning capacity as a 
 
            result of the injury of June 18, 1985.
 
            
 
                 9.  Defendant employer failed to provide claimant with 
 
            a job when he was released to return to work.
 
            
 
                 10. Claimant sustained a permanent partial disability 
 
            of 25 percent for industrial purposes as a result of the 
 
            injury of June 18, 1985.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has established that the accident of June 18, 
 
            1985 resulted in an injury to the body as a whole and that 
 
            he is entitled to a determination of industrial disability.
 
            
 
                 As a result of the injury of June 18, 1985, claimant 
 
            has sustained a permanent partial disability of 25 percent 
 
            for industrial purposes.
 
            
 
                 Claimant has established a healing period from June 18, 
 
            1985 up to and including January 27, 1987.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant eighty-four 
 
            point one four three (84.143) weeks of healing period 
 
            benefits at the stipulated rate of one hundred eighty-four 
 
            and 81/100 dollars ($184.81) for the period from June 18, 
 
            1985 up to and including January 27, 1987.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the stipulated rate of one hundred eighty-four 
 
            and 81/100 dollars ($184.81) commencing January 28, 1987.
 
            
 
                 That defendants shall receive full credit for all 
 
            disability benefits previously paid.
 
            
 
                 That defendants pay accrued amount in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay the costs of the hearing proceeding 
 
            and claimant pay the costs on appeal including the costs of 
 
            the transcription of the hearing proceeding pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of February, 1990.
 
            
 
                 
 
            
 
                 
 
            
 
                 
 
            
 
                                         _________________________
 
                                             DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
                 
 
            Copies To:
 
            
 
            Mr. Kenneth Sacks
 
            Attorney at Law
 
            215 S. Main Street
 
            P.O. Box 1016
 
            Council Bluffs, IA  51502
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            Suite 111, Terrace Center
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803
 
                                          Filed February 26, 1990
 
                                          DAVID E. LINQUIST
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JERRY EVANS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 798259
 
            HENNINGSEN CONSTRUCTION CO.,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Functional impairment is merely one factor to be considered 
 
            in determining industrial disability.  Factors are not 
 
            plugged into an equation to determine industrial disability.  
 
            Functional impairment does not limit industrial disability, 
 
            industrial disability may be more thaqn equal to or less 
 
            than functional impairment.  Industrial disability is not a 
 
            calculation but an evaluation of the employee and his 
 
            injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY EVANS,
 
         
 
              Claimant,
 
                                              File No. 798259
 
         vs.
 
         
 
         HENNINGSEN CONSTRUCTION CO.,       A R B I T R A T I 0 N
 
         
 
              Employer,                       D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jerry Evans, 
 
         claimant, against Henningsen Construction, employer, and Cigna 
 
         Insurance Companies, insurance carrier, to recover benefits under 
 
         the Iowa Workers' Compensation Act as a result of an injury 
 
         sustained June 18, 1985.  This matter came on for hearing before 
 
         the undersigned deputy industrial commissioner April 19, 1988.  
 
         The record was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant, Tracy Evans, his wife, Alfred Marchisio, Jr., and Ellen 
 
         Sokolowski; and joint exhibits 1 through 15, inclusive, and 17 
 
         through 24, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved April 19, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  The extent of claimant's entitlement to healing period 
 
         benefits; and,
 
         
 
              2.  The nature and extent of claimant's entitlement to 
 
         permanent partial disability benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arcs@ out of and in the 
 
         course of his employment on June 18, 1985 when he lost his grip 
 
         and fell approximately 35 feet from a pole column.  Claimant 
 
         stated that everything,"compacted," that he blacked out, could 
 
         not talk and was a "bloody gory mess" with the bones in his hands 
 
         exposed.  Claimant recalled experiencing pain in his back, 
 
         tailbone, right leg, heel and arms and that he was hospitalized 
 
         for approximately one week.  Claimant testified he has had 
 
         surgery on his hand, fingers and wrist and that he wore a cast 
 
         for about a year.  Claimant explained he later went to see Arnis 
 

 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE 2
 
 
 
 
 
         Grundberg, M.D., who first put "plastic bones" in his wrist and 
 
         later fused his wrists.  On referral from Ronald K. Miller, M.D., 
 
         claimant's primary treating physician, claimant saw R. Schuyler 
 
         Gooding, M.D., whom he described as a "back specialist" and who 
 
         predescribed physical therapy for, according to claimant, "nerve 
 
         and muscle damage."  Claimant reported that he went to therapy 
 
         for a week or two and then was told defendant insurance carrier 
 
         would not pay for the treatments and, since he could not 
 
         personally afford the cost, he discontinued the therapy 
 
         thereafter.  Claimant continued to complain of back pain to Dr. 
 
         Grundberg and was later referred to William R. Boulden, M.D., 
 
         who, according to claimant, prescribed "extensive back or work 
 
         hardening therapy."  Claimant asserted that once he began such 
 
         therapy he was again told by the therapist that defendant 
 
         insurance company would not pay for the treatment and claimant, 
 
         although maintaining he was willing to undergo the treatment, 
 
         discontinued the therapy sessions.  Claimant acknowledged on 
 
         cross-examination, however, that he was never advised by 
 
         defendant insurance carrier that therapy would not be provided.
 
         
 
              Claimant explained he cannot push, pull or lift anything 
 
         in excess of 20 pounds with his right arm and that his whole 
 
         arm "pops and grinds" if he lifts above his shoulders.  
 
         Claimant testified his back hurts all the time, that he cannot 
 
         sit or lay "very long," that he cannot sleep at night, that he 
 
         cannot walk as far as he would like to, and that he has 
 
         numbness in his right leg and tingling in the toes of his right 
 
         foot with tenderness in his heels which causes him to walk on 
 
         the balls of his feet.  Claimant denied an ability to work 
 
         again in steel erection asserting he cannot climb, twist, lift, 
 
         bend or pour concrete because such a job takes two good hands 
 
         and a good back.  Claimant was afforded the opportunity for 
 
         vocational rehabilitation and was asked if he wanted to go to 
 
         school.  Although claimant maintained he has not refused any 
 
         retraining, claimant made it clear to all the rehabilitation 
 
         counselors with whom he has worked that he would rather have 
 
         on-the-job training in order to support his family.  Claimant 
 
         stated he was aware he would receive workers' compensation 
 
         benefits during the course of his training but complained that 
 
         the $184 he was receiving did not go very far.  While claimant 
 
         asserted he would accept retraining, he maintained that what 
 
         the counselors advised was not what he wanted.  As an example, 
 
         claimant stated that Ellen Sokolowski, one of the counselors 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE   3
 
         
 
         with whom he has worked, wanted to steer him towards the 
 
         position as a parts clerk and he wanted to go into welding 
 
         which he felt he had done a lot and at which he felt he was 
 
         "good."  Claimant did admit that he was advised that he could 
 
         go to school and take anything that he wanted.
 
         
 
              Claimant testified he has sought work with approximately 
 
         thirty-eight businesses, that he regularly reports to job 
 
         service and that he has pursued each lead given him by his 
 
         vocational rehabilitation counselors but that he has not had 
 
         any job offers.  Claimant offered that when he was released to 
 
         return to work, he went to defendant employer's steel 
 
         supervisor but never heard anything about employment with the 
 
         company.  Claimant opined he could drive a pilot car, work on a 
 
         paver or broom tractor, drive a truck or be a flagman or safety 
 
         officer.  Claimant testified he did not feel he has reached 
 
         maximum medical recovery since his back still hurts and his leg 
 
         goes numb.  Claimant stated he is willing to return to work but 
 
         defendant employer will not hire him.
 
         
 
              On cross-examination, claimant revealed that since his 
 
         injury he was employed at a mini-mart for one day and that he 
 
         quit there due to the commuting distance and paperwork.  
 
         Claimant also offered that he drove a tractor for a few days 
 
         and that he worked as a flagman for a week and a half.
 
         
 
              Tracy Evans testified that life has changed "a lot" since 
 
         claimant's injury, that claimant is irritable, grumpy and short 
 
         tempered and opined that claimant is not completely healed, 
 
         otherwise there would not be pain.
 
         
 
              Alfred J. Marchisio, Jr., who identified himself as a 
 
         vocational rehabilitation counselor and consultant, testified 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE   4
 
         
 
         that he saw claimant on one occasion, December 11, 1987, at the 
 
         request of claimant's counsel in order to provide an assessment 
 
         of earning capacity.  Mr. Marchisio explained he utilized the 
 
         limitations imposed by Dr. Grundberg although he acknowledged 
 
         Dr. Boulden would have more current information since Dr. 
 
         Boulden was the last physician to see claimant.  Mr. Marchisio 
 
         opined claimant has many strengths based on the general 
 
         aptitude tests he administered and that claimant has the 
 
         ability to profit from the retraining he rejects.  Mr. 
 
         Marchisio estimated claimant has a 30 to 55 percent earning 
 
         capacity loss considering the union scale rate of pay of $13.40 
 
         per hour and that claimant is currently qualified for positions 
 
         paying $3.35 to $5.00 per hour.  Mr. Marchisio stated that 
 
         claimant's current financial situation is not very good 
 
         although his financial situation with the workers' compensation 
 
         benefits is very similar to what his take home pay was prior to 
 
         his injury.  On cross-examination, Mr. Marchisio opined that 
 
         claimant is employable even in the construction industry and if 
 
         not in the construction industry at an entry level position.  
 
         Mr. Marchisio stated that retraining would broaden claimant's 
 
         horizons a great deal.
 
         
 
              Ellen Sokolowski, who identified herself as a 
 
         rehabilitation counselor with Intracorp, testified she was 
 
         retained by defendant insurance carrier to fully evaluate 
 
         claimant's employment situation to see if claimant could return 
 
         to work.  Ms. Sokolowski stated she contacted defendant 
 
         employer who appeared to her to be cooperative in returning 
 
         claimant to work but who advised no positions were available 
 
         within claimant's restrictions.  Ms. Sokolowski acknowledged 
 
         she tried to steer claimant away from welding because according 
 
         to the Dictionary of Occupational Titles the requirements of 
 
         the job would exceed the restrictions imposed by claimant's 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE   5
 
         
 
         physicians.  Ms. Sokolowski maintained she was not aware of any 
 
         restrictions placed on claimant by any medical professional 
 
         because of claimant's back or legs.  Ms. Sokolowski named a 
 
         number of positions for which she felt claimant was qualified 
 
         including hotel clerk, route delivery, dispatcher, reservation 
 
         agent, information clerk, order clerk, and parts order/stock 
 
         clerk.  Ms. Sokolowski stated she referred claimant to a 
 
         position in painting/prep work with a company in Papillion, 
 
         Nebraska, and that claimant did apply for the position but that 
 
         when she contacted the company following claimant's application 
 
         the company advised her they did not feel claimant was really 
 
         interested in securing the position.
 
         
 
              Medical records reveal that after claimant was transported 
 
         to Jennie Edmundson Hospital following his injury, he was 
 
         treated by Ronald K. Miller, M.D., orthopedic surgeon, and Joel 
 
         M. Bleicher, M.D., who also performed surgery.  Claimant 
 
         underwent an open reduction and internal fixation of the 
 
         comminuted fracture of the right navicula on June 21, 1985.  On 
 
         July 16, 1985, Dr. Miller determined claimant's hand would have 
 
         to be grafted and noted also that claimant was complaining of 
 
         "much much" pain in his "neck, back, shoulders, etc."  By 
 
         January 1986, Dr. Miller noted claimant was voicing "minimal 
 
         complaints of pain" with regard to his right wrist and on 
 
         February 12, 1986, Dr. Miller advised;
 
         
 
                 This gentleman's neck and low back are still giving 
 
              him some problems, however, on exam he has basically 
 
              good forward flexion and good extension, good right and 
 
              left lateral bending, and good rotation ....
 
         
 
                 Recommendation at this time would be to continue on 
 
              outpatient physical therapy with strengthening and 
 
              stretching particularly to his cervical spine and 
 
              lumbar spine ....
 
         
 
                 This gentleman at this time probably could return to 
 
              some light duty part-time position with restrictions 
 
              regarding a lot of bending, stooping, and lifting, 
 
              particularly using the right arm.  I anticipate maximum 
 
     
 
         
 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE   6
 
         
 
              healing date will probably be perhaps one year from his 
 
              date of injury.
 
         
 
         (Joint Exhibit 5, pages 2-3)
 
         
 
              However, one month later, Dr. Miller Opined:
 
                 I think this gentleman is developing an avascular 
 
              necrosis of the proximal end of his navicular.  The 
 
              remaining portion of the navicular appears to be quite 
 
              rough and fragmented and the overall outlook does not 
 
              look good.  In addition, there is a dorsal capsular 
 
              mass of bone which may in essence be blocking extension 
 
              which at the time of any future hand surgery might need 
 
              to be removed.  The patient will be referred to Dr. 
 
              Grundberg, a hand surgeon [sic] in Des Moines for an 
 
              evaluation.
 
         
 
         (Jt. Ex. 5, p. 1)
 
         
 
              Records show Dr. Grundberg performed a fusion of the right 
 
         wrist on May 5, 1986 and on August 14, 1986, Dr. Grundberg 
 
         opined:
 
         
 
              I don't think he needs a pain clinic from the 
 
              standpoint of his back.
 
         
 
                 ....
 
         
 
                 Prognosis:  Further improvement with time in regard 
 
              to pain R wrist and hand and strength.
 
         
 
                 Anticipated maximum healing date:  3-6 mo.
 
         
 
                 Restrictions at that time (if different than above): 
 
              no pushing pulling or lifting over 20 lbs with R upper 
 
              extremity.
 
         
 
         (Jt. Ex. 6, p. 6)
 
         
 
              On January 27, 1987, Dr. Grundberg opined claimant had 
 
         sustained a permanent impairment of 35 percent of the hand on the 
 
         basis of ankylosis of the wrist.  Dr. Grundberg also noted 
 
         claimant had some limitation of forearm rotation and finger 
 
         flexion but expected these to improve with time. one year later, 
 
         Dr. Grundberg imposed permanent restrictions of no pushing, 
 
         pulling or lifting over 20 pounds with claimant's right hand.
 
         
 
              On August 18, 1986, claimant was seen by William R. Boulden, 
 
         M.D., of Central Iowa Orthopaedics, at the request of defendant 
 
         insurance carrier.  Dr. Boulden stated:
 
         
 
              We have been asked to see him concerning basically his 
 
              back, since the right wrist is being taken care of very 
 
              nicely by Dr. Grundberg.
 
         
 
                 In reference to his back, he describes it as back 
 
              pain extending from about the shoulder blade area down 
 
              to the low back area.  There is no radiation of pain 
 
              into the arms or legs.  He states that the leg numbness 
 
              is occasionally bad.  His treatment in the past has 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE   7
 
         
 
              been some exercises, therapy, but it does not sound 
 
              like he has done very much exercising.
 
         
 
                 Physical examination shows the patient to be tender 
 
              in the paraspinous muscles on both sides, starting 
 
              approximately the level of T8 extending down to the 
 
              sacral area bilaterally.  There is no bony spinous 
 
              process pain.  There are no spasms noted.  Full left 
 
              and right lateral bending.  Flexes to 75 degrees and 
 
              then complains of low back pain.  Straight leg raising 
 
              is negative bilaterally.  Deep tendon reflexes are 
 
              equal and symmetrical in the knees and ankles.  No 
 
              motor weakness.  No sensory changes.  We reviewed his 
 
              lumbar spine and thoracic spine films as well as a 
 
              myelogram which were completely normal.
 
         
 
                 Impression:  Residual myofascial pain and tightness, 
 
              secondary to strain.
 
         
 
                 Recommendations:  Swimming program, walking program, 
 
              back flexion exercise program.
 
         
 
                 It is my feeling that if he gets into these 
 
              entities, then he should be able to return back to work 
 
              in short order.
 
         
 
                 Obviously, he will need to be restricted ....
 
         
 
                 I feel that the final restrictions should be made by 
 
              Dr. Grundberg in reference to his wrist, that will be 
 
              the limiting factor, not his back.
 
         
 
                 In fact, the healing time should be based on Dr. 
 
              Grundberg's recommendations, and when he has ended the 
 
              healing period concerning his wrist, then I would 
 
              clarify his back at the same time.
 
         
 
         (Jt. Ex. 7, p. 3)
 
         
 
              Claimant was seen again May 11, 1987 at which time Dr. 
 
         Boulden's impression was "Normal lumbar spine, no structural 
 
         abnormalities.  Sacroilliac joint tenderness." (Jt. Ex. 7, p. 4)
 
         
 
              On January 4, 1988, R. Schuyler Gooding, M.D., neurological 
 
         surgeon, summarized the care given claimant, stating:
 
         
 
                 This patient was initially seen and examined by me 
 
              at Jennie Edmundson Hospital on July 17, 1985, at the 
 
              request of Dr. Ronald Miller, an Orthopedic Surgeon in 
 
              Council Bluffs,
 
         
 
                 I was asked to see him because of pain in his neck 
 
              and lower back, with this discomfort tending to also 
 
              involve the upper and lower extremities.
 
         
 
                 A neurological examination revealed some diminished 
 
              sensation over the Right foot, as well as some spasm of 
 
              his lower back.
 
         
 
                 X-rays of the cervical and lumbar spine were normal.  
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE   8
 
         
 
              A total myelogram was also normal.
 
         
 
                 My impression was that the patient had sustained 
 
              stretch-strain types of injuries involving the soft 
 
              tissues of the neck and the lower back, and as such, 
 
              conservative treatment was appropriate, with no 
 
              evidence of a more significant injury such as a 
 
              ruptured disc having been identified.
 
         
 
                 He continued under the care of Dr. Miller, because 
 
              of problems with his Right upper extremity (lacerations 
 
              and fractures involving the hand).
 
         
 
                 I next saw him on October 29, 1985, at which time he 
 
              described his low back as still hurting, as well as 
 
              headaches.  I suggested that his Family Physician be 
 
              contacted with regard to these complaints, in that I 
 
              had not been able to identify a neurosurgical problem.
 
         
 
                 I saw him again on January 23, 1986, at which time 
 
              he continued to describe pain throughout his back.  I 
 
              suggested a lumbosacral corset as well as providing him 
 
              with a muscle relaxant and an anti-inflammatory 
 
              medication. .
 
         
 
                 I next saw him on February 20, 1986, at which time 
 
              he described headaches as being the major problem.  I 
 
              obtained an EMG-NCT evaluation of the Right upper and 
 
              Right lower extremities as well as an EEG, and these 
 
              were all normal.
 
         
 
                 I saw him on March 4, 1986, advised him of the 
 
              results of the aforementioned tests, and advised him, 
 
              furthermore, that he' should continue to obtain his 
 
              medical care from his Family Physician, in that a 
 
              neurosurgical problem had never been identified.
 
         
 
                 I have had no further contact with the patient.
 
         
 
                 I was only able to identify what I felt were 
 
              cervical and lumbar stretch-strain types of injuries, 
 
              and these would be expected to progressively respond to 
 
              conservative (non-surgical) measures.
 
         
 
                 I would expect his overall prognosis with regard to 
 
              his spine problems to be excellent.  I would not 
 
              anticipate any further problems with regard to the 
 
              spine, as the direct result of this injury.
 
         
 
                 Unfortunately, it sometimes takes a year or longer 
 
              for the majority of the discomfort to pass, following 
 
              an injury of this type, which can be very frustrating 
 
              to.the patient.  However, within two years, most of 
 
              these patients do obtain total symptomatic relief.
 
         
 
                 If he continues to describe significant neck and 
 
              low-back discomfort, at this late date following his 
 
              injury, I would be inclined to assign a permanent 
 
              partial disability with regard to the whole person, of 
 
              10%, equally divided between the Cervical and lumbar 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE   9
 
         
 
              regions.
 
         
 
         (Jt. Ex. 19)
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Pursuant to the prehearing report and order, the parties 
 
         have stipulated that claimant sustained an injury on June 18, 
 
         1985 which arose out of and in the course of his employment and 
 
         which is the cause of both temporary and permanent disability.  
 
         The essential questions for resolution are the extent of 
 
         claimant's entitlement to weekly benefits and whether claimant 
 
         has sustained an injury to a scheduled member or to the body as a 
 
         whole. (Although defendants argue claimant is not an odd-lot 
 
         employee, the record will show that at the end of claimant's 
 
         presentation of evidence, claimant withdrew odd-lot as an issue 
 
         in the case.  Consequently, the odd-lot doctrine will not be 
 
         addressed herein.)
 
         
 
              Defendants argue that claimant's only disability resulting 
 
         from the injury admitted by defendants is 35 percent permanent 
 
         partial disability to the hand and that claimant is not entitled 
 
         to an industrial disability as this disability is member 
 
         confined.  Claimant, on the other hand, argues that as a result 
 
         of the injury sustained June 18, 1985, claimant has sustained a 
 
         35 percent permanent partial disability to his hand entitling him 
 
         to an award of 66.5 weeks of compensation, a 10 percent 
 
         disability to his body as a whole, entitling him to 50 weeks of 
 
         compensation, and that claimant has suffered an industrial 
 
         disability entitling him up to 500 weeks of compensation.  
 
         Claimant argues in the alternative that he has suffered a 
 
         permanent total disability for which he is entitled to recover 
 
         from defendants.
 
         
 
              Claimant should be aware that the practice of "stacking" was 
 
         rejected by the industrial commissioner in Henry v. Iowa-Illinois 
 
         Gas and Electric Company, Appeal Decision filed April 17, 1987, 
 
         which cites to Graves v. Economy Forms, File No. 512901, filed 
 
         December 11, 1981.  Graves held that an injury to an arm and both 
 
         legs fell under the provisions of Iowa Code section 85.34(2)(u) 
 
         rather than Iowa Code section 85.34(2)(m), (o) and (s).  
 
         Claimant's argument is therefore without merit.
 
         
 
              The undersigned concludes that the greater weight of 
 
         evidence establishes claimant, as a result of the accident of 
 
         June 18, 1985, sustained an injury to his arm and to his back 
 
         which, extending beyond the schedule, constitutes an injury to 
 
         the body as a whole entitling claimant to a determination of 
 
         industrial disability.  Clearly, claimant sustained an injury to 
 
         his hand on which he underwent a number of surgical procedures.  
 
         Just as clearly, it appears to the undersigned claimant sustained 
 
         an injury to his back as claimant complained of pain in his neck, 
 
         back and shoulders right from the outset.  Claimant was treated 
 
         with physical therapy prescribed by more than one medical 
 
         practitioner because of his back pain.  Dr. Gooding continually 
 
         refers to claimant's injury and the accompanying symptoms.  The 
 
         undersigned can find no other cause for claimant's back pain to 
 
         exist in the record outside of the injury of June 18, 1985.  The 
 
         type of fall claimant took is consistent with what one might 
 
         expect to result in a back injury.  Merely because some of the 
 
         medical experts dispute whether claimant has any impairment as a 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE  10
 
         
 
         result of the injury does not negate the fact that the injury 
 
         occurred.  Iowa Code section 85.34(2)(u);
 
         
 
                 In all cases of permanent partial disability other 
 
              than those hereinabove described or referred to in 
 
              paragraphs "a" through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employ as a whole.
 
         
 
                 If it is determined that an injury has produced a 
 
              disability less than that specifically described in 
 
              said schedule, compensation shall be paid during the 
 
              lesser number of weeks of disability determined, as 
 
              will not exceed a total amount equal to the same 
 
              percentage proportion of said scheduled maximum 
 
              compensation.
 
         
 
              Functional disability is an element to he considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE  11
 
         
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Claimant, age 30, completed the eleventh grade and, since 
 
         his injury, has acquired his GED.  Claimant has previous work 
 
         experience in a pipe factory, mowing yards, doing farm work, 
 
         delivering furniture, laying carpet, doing handyman work for his 
 
         landlord and as a steelworker.  Claimant has current and 
 
         permanent restrictions of no pushing, pulling or lifting over 20 
 
         pounds with his right hand, no climbing, and occasional crawling, 
 
         all imposed by Dr. Grundberg.  Dr. Grundberg has also opined 
 
         claimant is capable of sitting, standing and walking for eight 
 
         hours in a eight hour work day and that claimant can frequently 
 
         bend, squat and reach.  No other medical provider has imposed any 
 
         restrictions on claimant.  Claimant disputes Dr. Grundberg's 
 
         opinions as he asserts he cannot extensively sit, stand, walk, 
 
         stoop or bend without discomfort.
 
         
 
              Claimant appears to have been in good health prior to this 
 
         injury and to have had an ability to perform all the tasks 
 
         required of his job in steel erection.  Claimant, based on the 
 
         restrictions imposed, is prohibited from that employment 
 
         currently.  However, both Mr. Marchisio and Ms. Sokolowski agree 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE  12
 
         
 
         claimant could easily be retrained for other positions.  This 
 
         appears to be claimant's best alternative to re-entering the job 
 
         market and it greatly disturbs the undersigned that claimant has 
 
         not pursued any of the opportunities presented to him.  Claimant 
 
         has candidly admitted he has been told he may pursue any vocation 
 
         he desires and continue to receive his workers' compensation 
 
         benefits but complains of the advice he is given.  Claimant must 
 
         take responsibility for his own actions and defendants cannot be 
 
         held liable for claimant's attitude.  Claimant has the 
 
         qualifications intellectually, emotionally and physically to 
 
         re-enter the job market yet he has chosen to do so only on a 
 
         sporadic basis.  Claimant may have to accept the fact he may 
 
         never be without pain.  While physical therapy has twice been 
 
         prescribed for claimant's back pain, twice claimant has 
 
         discontinued the treatment on the assertion he was told defendant 
 
         insurance carrier would not pay for that treatment.  However, 
 
         claimant did not, at any time, check directly or through his 
 
         counsel with defendant insurance carrier to inquire into whether 
 
         or not payments would be made.  This calls into question 
 
         claimant's desire to overcome the effects of his injury when he 
 
         fails to take any assertive actions on his own to improve his 
 
         condition.  Claimant has suffered an injury which has resulted in 
 
         a permanent disability.  As the court stated in Armstrong Tire & 
 
         Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 1981), a person with 
 
         a "permanent disability" can never return to the same physical 
 
         condition he or she had prior to the injury.  This attitude of 
 
         claimant's does not necessarily speak well for claimant's 
 
         motivation.  Defendants on the other hand have failed to provide 
 
         claimant with any type of employment which may fall within his 
 
         employability restrictions.  It has been held that a defendant 
 
         employer's refusal to give any sort of work to a claimant after 
 
         he suffers his affliction may justify an award of disability.  
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              A review of the record as a whole establishes that 
 
         claimant's injury has resulted in both an actual loss of earnings 
 
         and a loss of earning capacity.  Considering then all the 
 
         elements of industrial disability, it is determined that claimant 
 
         has sustained a permanent partial disability of 25 percent for 
 
         industrial purposes entitling claimant to 125 weeks of permanent 
 
         partial disability benefits.
 
         
 
              Iowa Code section 85.34(2) provides the compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  The final issue for resolution, then, is the 
 
         extent of claimant's entitlement to healing period benefits.  
 
         Claimant was injured on June 18, 1985.  Dr. Boulden, who saw 
 
         claimant with reference to his back, defers to Dr. Grundberg's 
 
         recommendations with regard to claimant's abilities to return to 
 
         work.  Dr. Gooding stated on January 4, 1988;
 
         
 
                 Unfortunately, it sometimes takes a year or longer 
 
              for the majority of the discomfort to pass, following 
 
              an injury of this type, which can be very frustrating 
 
              to the patient.  However, within two years, most of 
 
              these patients do obtain total symptomatic relief.
 
         
 
         (Jt. Ex. 19, p. 2)
 
         
 
         However, it must be noted that at the time Dr. Gooding rendered 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE  13
 
         
 
         this opinion, he had not seen claimant since March 4, 1986, 
 
         almost two years before.  Dr. Grundberg, on January 27, 1987, 
 
         rendered an opinion on permanent impairment and imposed 
 
         restrictions on claimant's employability.  Dr. Grundberg did not 
 
         change his opinion with regard to either impairment or 
 
         restrictions when claimant was seen again on January 12, 1988.
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
                 By the very meaning of the phrase, a person with a 
 
              "permanent disability" can never return to the same 
 
              physical condition he or she had prior to the injury 
 
              .... See, 2 A. Larson, The Law of Workmen's 
 
              Compensation section 57.12 (1981).  The healing period 
 
              may be characterized as that period during which there 
 
              is reasonable expectation of improvement of the 
 
              disabling condition," and ends when maximum medical 
 
              improvement is reached.  Boyd v. Hudson Pulp & Paper 
 
              Corp., 177 So.2d 331, 330 (Fla.1965). That is, it is 
 
              the period "from the time of the injury until. the 
 
              employee is as far restored as the permanent character 
 
              of his injury will permit.  "Winn Drilling Company v. 
 
              Industrial Commissioner, 32 Ill.2d 144, 145-6, 203 
 
              N.E.2d 904,905-6 (1965).  See also W. Schneider, 
 
              Schneider's Workman's Compensation, section 2308 
 
              (1957).  Thus, the healing period generally terminates 
 
              "at the time the attending physician determines that 
 
              the employee has recovered as far as possible from the 
 
              effects of the injury.  Winn, 203 N.E. at 906.
 
         
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 
 
         1981).
 
         
 
              The undersigned concludes that claimant's healing period 
 
         ended January 27, 1987 as claimant appears by that time to have 
 
         recovered as far as possible from the effects of his injury.  
 
         Therefore, claimant is entitled to healing period benefits for 
 
         the period from June 18, 1985 up to and including January 27, 
 
         1987, and claimant is entitled to permanent partial disability 
 
         benefits commencing January 28, 1987.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on June 18, 1985.
 
         
 
              2.  Claimant's injuries were to his hand and back.
 
         
 
              3.  Claimant sustained an injury to the body as a whole.
 
         
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE  14
 
         
 
              4.  Claimant reached maximum medical recovery on January 27, 
 
         1987.
 
         
 
              5.  Claimant has a permanent impairment and permanent work 
 
         restrictions as a result of the injury of June 18, 1985 which 
 
         prohibit him from engaging in his regular occupation of 
 
         steelworker.
 
         
 
              6.  Claimant, age 30, with an eleventh grade formal 
 
         education, acquired his GED subsequent to his injury and has the 
 
         qualifications intellectually, emotionally and physically to 
 
         re-enter the job market.
 
         
 
              7.  Claimant's motivation is suspect.
 
         
 
              8.  Claimant, as a result of the injury of June 18, 1985, 
 
         has suffered a loss of earning capacity.
 
         
 
              9.  When claimant was released to return to work, defendant 
 
         employer failed to provide him with any work.
 
         
 
             10.  Claimant, as a result of the injury of June 18, 1985, 
 
         has sustained a permanent partial disability of 25 percent for 
 
         industrial purposes.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established that the accident of June 18, 
 
         1985 has resulted in an injury to the body as a whole and that he 
 
         is entitled to a determination of industrial disability.
 
         
 
              2.  As a result of the injury of June 18, 1985, claimant has 
 
         sustained a permanent partial disability of 25 percent for 
 
         industrial purposes.
 
         
 
              3.  Claimant has established a healing period from June 18, 
 
         1985 up to and including January 27, 1987.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant eighty-four point one 
 
         four three (84.143) weeks of healing period benefits at the 
 
         stipulated rate of one hundred eighty-four and 81/100 dollars 
 
         ($184.81) for the period from June 18, 1985 up to and including 
 
         January 27, 1987.
 
         
 
              Defendants shall pay unto claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the 
 
         stipulated rate of one hundred eighty-four and 81/100 dollars 
 
         ($184.81) commencing January 28, 1987.
 
         
 
               Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 

 
         
 
         
 
         
 
         EVANS V. HENNINGSEN CONSTRUCTION CO.
 
         PAGE  15
 
         
 
         together with statutory interest therein pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
              Signed and filed this 22nd day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                      DEBORAH A. DUBIK
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Kenneth Sacks
 
         Attorney at Law
 
         404-409 Park Bldg.
 
         P.O. Box 1016
 
         Council Bluffs, IA 51502
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Avenue
 
         Des Moines, IA 50312
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803
 
                                               Filed December 22, 1988
 
                                               Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY EVANS,
 
         
 
              Claimant,
 
                                                 File No. 798259
 
         vs.
 
         
 
         HENNINGSEN CONSTRUCTION CO.,         A R B I T R A T I 0 N
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant, who injured his hand and back in a fall, found to 
 
         have sustained an injury to the body as a whole and awarded an 
 
         industrial disability of 25 percent.
 
 
 
 
                                                           
 
 
 
 
 
 
 
 
 
 
 
                                                           
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                                           
 
         RICHARD P. SMITH,
 
         
 
              Claimant,
 
                                                      File No.  798385
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         ARMSTRONG RUBBER COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Richard P. Smith against defendant employer Armstrong Rubber 
 
         Company and defendant insurance carrier Travelers Insurance 
 
         Company to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of an injury sustained on June 21, 1985.  This 
 
         matter came on for hearing before Deputy Industrial Commissioner 
 
         Garry Woodward in Des Moines, Iowa, on April 15, 1988.  The 
 
         matter was considered fully submitted at the close of hearing, 
 
         although each party subsequently submitted a brief.
 
         
 
              The record consists of the testimony of claimant, Jack 
 
         Salsbury, Bob Wentzel and William Wellington, M.D. In addition, 
 
         claimant's exhibits 1, 2 and 3 were admitted into evidence.  The 
 
         administrative file also contains exhibits marked as defendants' 
 
         A, B and C, but the record transcript fails to show that these 
 
         exhibits were either offered or admitted.  The hearing deputy 
 
         pursuant to office custom prepared an exhibit file envelope 
 
         showing claimant's exhibits 1 through 3 and defendants' exhibits 
 
         A through C, but without marking any of those exhibits as to 
 
         whether they were offered or received.  In telephone 
 
         conversations with the undersigned, neither counsel specifically 
 
         remembered whether or not the exhibits had been admitted.  
 
         However, Mr. Monson suggested that it was normal practice for he 
 
         and Mr. Pratt to enter exhibits at the start of a hearing.  From 
 
         previous assigned cases, the undersigned is aware that Deputy 
 
         Woodward handled many preliminary matters off the record.  Based 
 
         on all these factors, it is concluded that defendants' A, B and C 
 
         are part of the record.
 
         
 
              After the,record was closed, Deputy Woodward discontinued 
 
         his employment with the Iowa Industrial Commissioner.  By Order
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
          SMITH V. ARMSTRONG.RUBBER COMPANY
 
         'Page 2
 
         
 
         
 
         of July 22, 1988, jurisdiction for the purpose of preparing and 
 
         filing a proposed agency decision was transferred to the 
 
         undersigned by the industrial commissioner.  A transcript of 
 
         proceedings was prepared and received.  All of the record 
 
         evidence has been reviewed in preparation for this decision.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted  and  approved 
 
         on April 15, 1988, the parties have stipulated: To the existence 
 
         of an employer-employee relationship between claimant and 
 
         employer at the time of the injury; that claimant sustained an 
 
         injury on June 21, 1985, which arose out of and in the course of 
 
         that employment; that if claimant's injury be found to be a cause 
 
         of permanent disability, it is an industrial disability to the 
 
         body as a whole; that the correct rate of weekly compensation is 
 
         $296.94; that affirmative defenses are waived; that the providers 
 
         of medical services and supplies would testify that fees are 
 
         reasonable and for reasonable and necessary treatment of the 
 
         alleged work injury and defendants do not offer contrary 
 
         evidence; that the causal connection of the expenses to treatment 
 
         for a medical condition upon which claimant is now basing his 
 
         claim is admitted, but the causal connection of this condition to 
 
         a work injury remains an issue to be decided; that medical 
 
         expenses were authorized by defendants; that defendants are 
 
         entitled to credit for payments under Iowa Code section 85.38(2) 
 
         in the sum of $10,357.85; that defendants paid claimant 5 3/7 
 
         weeks of compensation at the stipulated rate; that Dr. Bakody's 
 
         bill is $301.00; mileage expenses are $29.40; that costs have 
 
         actually been paid.
 
         
 
              Issues identified as requiring resolution by this decision 
 
         include: Whether claimant's injury caused either temporary or 
 
         permanent disability; the extent of claimant's entitlement to 
 
         compensation for temporary total disability or healing period; 
 
         the extent of claimant's entitlement to compensation for 
 
         permanent disability; the commencement date for permanent partial 
 
         disability, if awarded; whether medical expenses are causally 
 
         connected to the work injury.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is a 53-year-old high school 
 
         graduate who was trained in engineering and electrical work 
 
         during a four-year stint in the United States Navy.  His 
 
         employment history includes a "couple years" as an x-ray repair 
 
         person for General Electric, a seven-year position with Iowa 
 
         Power and Light Company working in a steam power generating 
 
         plant, and his employment with defendant Armstrong Rubber 
 
         Company, which commenced on September 13, 1965.  Claimant began 
 
         his employment in the maintenance department, but was transferred 
 
         to a position as operating engineer in the power house on 
 
         November 28, 1966.  He remained in that position until the date 
 
         of his injury on June 21, 1985.  Claimant returned to work on 
 
         June
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY 
 
         Page 3
 
         
 
         
 
         21, 1986, but in a position as a mold cleaner in the maintenance 
 
         department and at a lower rate of pay.
 
         
 
              Claimant testified that the injury occurred when he was 
 
         moving a 50-gallon barrel.  The barrel slipped while he was 
 
         putting it on a dolly cart and claimant fell backwards.  Claimant 
 
         struck his head and promptly saw the plant physician, William 
 
         Wellington, M.D. Dr. Wellington sutured the contused laceration 
 
         on the same date.  Claimant was sent home and did not return to 
 
         work until June 21, 1986.  Claimant thereafter saw Santiago 
 
         Garcia, M.D., Alfredo Socarras, M.D., and John T. Bakody, M.D. As 
 
         discussed below, Dr. Bakody performed surgery described as an 
 
         anterior cervical interbody fusion C5-6.
 
         
 
              With reference to claimant's gait, he was asked if he had 
 
         trouble walking before the injury.  Claimant answered that he did 
 
         not have trouble, but simply walked with a different gait than 
 
         normal.  He also believed that a knee injury suffered in 1980 
 
         contributed to his walking problems.  Claimant conceded that his 
 
         gait is not as fluid as a normal person and attributed the 
 
         problem to exposure to heat (transcript, page 24-25).  He 
 
         explained that he perspires too much and that "gives you a little 
 
         uneven walk when you do that."
 
         
 
              Claimant testified that he was referred to a psychiatrist, 
 
         Michael Taylor, M.D., since he apparently suffered some 
 
         depression due to his failure to promptly recover from surgery.  
 
         He testified that he did recover through his hard work and did 
 
         well relearning to walk, after working with a walker and a cane.    
 
         He further testified that treating physician Dr. Bakody gave  him 
 
         a permanent lifting restriction of 40 pounds.  Today claimant is 
 
         able to walk without the assistance of either a cane or a  
 
         walker.  The 40-pound lifting restriction is his only medically 
 
         imposed limitation.
 
         
 
              Jack Salsbury testified that he is a union benefits 
 
         representative.  His testimony related to claimant's current wage 
 
         and premium pay as opposed to that of operating engineers.  Bob 
 
         Wentzel testified that he is assistant relations manager.  He 
 
         testified that claimant is secure in his position and also 
 
         testified that he had previously engaged in conversations with 
 
         individuals concerning what he referred to as claimant's 
 
         "staggered gait" prior to the injury.  There was some concern 
 
         that claimant's clumsiness could endanger him or other employees, 
 
         but no action was taken to remove claimant from his position.  
 
         Further, he testified that this was due to the labor contract 
 
         under which the parties operated.  Mr. Wentzel testified that 
 
         claimant appears to have improved his gait since his surgery and 
 
         that it was the 40-pound lifting restriction that caused his 
 
         transfer to a lighter and lower paying job.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              William Wellington" M.D., testified that he is a retired 
 
         physician who practiced in the field of general surgery and was 
 
         also industrial physician for this and another employer.
 
         
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY
 
         Page 4
 
         
 
         
 
         He was engaged in the practice of general surgery from 1967 until 
 
         his retirement on September 30, 1987.  He is still licensed to 
 
         practice medicine.
 
         
 
              Dr. Wellington testified that he saw claimant on June 21, 
 
         1985 for a contused laceration in the occipital region.  This was 
 
         described as a contusion caused by crushing rather than by a 
 
         sharp instrument.  Dr. Wellington reported that his first concern 
 
         was to attempt to rule out evidence of a brain or central nervous 
 
         system injury by observing claimant's reflexes, ear canals, 
 
         looking for a skull fracture and checking mental status.  He 
 
         found no signs of intracranial injury.  Claimant was treated by 
 
         removal of the crushed tissue to clean the wound and subsequent 
 
         suturing.
 
         
 
              Because of the potential for damage to the brain or central 
 
         nervous system, Dr. Wellington advised claimant to immediately 
 
         seek further medical attention if any further problems arose and 
 
         asked claimant to see Dr. Garcia on the next day for follow-up 
 
         (Dr. Garcia was also a plant physician).  He further reported 
 
         that Dr. Garcia had no new findings.
 
         
 
              Dr. Wellington also indicated that Dr. Garcia sent claimant 
 
         back for follow-up 48 hours later and that claimant then 
 
         complained of some headaches and a stiffness of the neck with 
 
         tenderness in the posterior cervical muscle region.  Dr. 
 
         Wellington believed that claimant had sustained a cervical strain 
 
         and prescribed muscle relaxant and pain medication; he still 
 
         could not find any central nervous system injury, but kept 
 
         claimant off work and gave him a new appointment for June 26, 
 
         1985.  He further reported that Dr. Garcia apparently saw him on 
 
         that date and observed that the laceration was healing properly 
 
         without infection, but also kept claimant off work until yet 
 
         another follow-up examination by Dr. Wellington on June 28.
 
         
 
              Dr. Wellington again saw claimant on June 28, 1985, and 
 
         removed the sutures since healing had been completed.  He again 
 
         checked for brain or central nervous system injury and at that 
 
         time felt that there were some things that "didn't look right to 
 
         me in his reflexes in the lower extremities." Fearing a possible 
 
         cerebral concussion because of the complaints of headaches and 
 
         stiffness, Dr. Wellington decided to refer claimant to a 
 
         neurologist, Alfredo Socarras, M.D.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Wellington also indicated that he had previously 
 
         discussed possible neurological problems of claimant with other 
 
         individuals, including a nurse and Bob Wentzel.  He considered 
 
         this factor along with the belief that the head injury did not 
 
         warrant his June 28, 1985 findings in making the referral to Dr. 
 
         Socarras.
 
         
 
              Dr. Wellington indicated that he had reviewed subsequent 
 
         findings, including radiographic and myelographic tests and 
 
         further discussed claimant's medical status in some detail.  He 
 
         noted that Dr. Socarras diagnosed a bilateral pyramidical
 
         
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY 
 
         Page 5
 
         
 
         
 
         involvement, tract involvement at the C5-6 level.  He noted that 
 
         a CT scan showed a bone hypertrophy at that level which he 
 
         described as an osteophyte, but so large that it might be 
 
         referred to as a tumor or benign tumor.  Further, he explained 
 
         that an osteophyte is a bony spur.
 
         
 
              Dr. Wellington indicated that claimant's bone spur was of 
 
         "tremendous size, enough as to progressively through the years 
 
         compress more and more on his spinal cord." The bony growth was 
 
         from the body of the vertebra, both anteriorly and posteriorly, 
 
         and not only at C-5 but at C-6.  He described the bony growth as 
 
         compressing the anterior aspect of the spinal cord where the 
 
         pyramidical tract goes and that this affected motor neurons that 
 
         allow coordination, causing loss of motor function.
 
         
 
              Dr. Wellington was repeatedly asked on both direct and 
 
         cross-examination as to whether claimant's head injury of June 
 
         21, 1985 caused his neurological problems or growth of the bony 
 
         spur.  He insisted that there was no causal connection between 
 
         the injury and the bony spur, and that the spur had been growing 
 
         for perhaps 5-7 years, that it was related to claimant's gait 
 
         problems, and that the injury was actually a blessing in 
 
         disguise, since it brought the matter to a diagnostic head so as 
 
         to allow surgical intervention at an earlier time than would 
 
         otherwise be the case.  Dr. Wellington firmly believed that 
 
         claimant's surgical intervention would have been necessary with 
 
         or without the head injury under review.
 
         
 
              Dr. Wellington noted the report of Dr. Cooper, whose 
 
         impression was "moderate to severe cervical spondylosis and 
 
         degenerative joint disease in the cervical spine." He related 
 
         this to the natural aging process and stated that spondylosis is 
 
         a degenerative disease.  He noted that a report of "partial block 
 
         at C5-C6, most likely due to the moderate to severe spondylosis" 
 
         was a reference to the bony spurs that had previously been 
 
         described.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              In describing the bump on the head and  the  spondylosis in 
 
         the cervical spine as two different conditions, Dr. Wellington 
 
         reported at page 28 of the transcript that he held this opinion 
 
         to a high degree of medical certainty.. He explained that the 
 
         neurological deficit found by Dr. Socarras was caused by 
 
         compression of the cervical spine by those bony spurs, and not by 
 
         the head injury.
 
         
 
              When asked about Dr. Bakody's findings, particularly as to 
 
         claimant's worsening condition, Dr. Wellington testified as 
 
         follows:
 
         
 
              A.  Well, Dr. Bakody reported that the patient has had a 
 
              spastic, ataxic type of gait present for five years.
 
              
 
              Q.  And then he says "not worsening." He says
 
              
 
              
 
              
 
         SMITH V. ARMSTRONG ROBBER COMPANY 
 
         Page 6
 
         
 
         
 
              A.  Well, the patient stated that he didn't think he was any 
 
              worse on July 31st.
 
              
 
              Q.  Now, I will take you down to September 3, 1985, about 
 
              the third or fourth line of that note where it says, 
 
              "probably worsening."
 
              
 
              A.  Well,.Dr. Bakody observed that he was more spastic in 
 
              the left lower extremity with a Babinski reflex present.  
 
              That is an abnormal Babinski, and in his opinion, he said 
 
              probably worsening, probably getting worse.
 
              
 
              Q.  Now, we have had testimony Mr. Smith did not work 
 
              between July -- well, actually from June 21st of '85, 
 
              through this time and considerably after.  Do these notes of 
 
              change of condition by Dr. Bakody suggest anything to you?
 
              
 
              A.  Well, it is a pathological condition that has nothing to 
 
              do with activity.  You could have the condition working or 
 
              not working.  You have the misfortune of having this type of 
 
              bony growth in your spine at that level.  The condition will 
 
              progress, that is what I say, even with the surgery that he 
 
              has undergone.  As years go by, that bony spur will again 
 
              keep growing and will keep impinging on the spine.
 
              
 
              Q.  And that is what had happened here between July and 
 
              September of '85?
 
              
 
              A.  Correct.
 
              
 
              Q.  Does this progression have any bearing on the opinion 
 
              that you have expressed earlier that the injury was not the 
 
              cause of the problem -- that the June 21st fall was not the 
 
              cause of his problem?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.  He had two or three injuries before, like the fracture 
 
              of the tibia in 1980, some other chest injury where he had 
 
              sustained some fractured ribs, and this fall, where I 
 
              believe there are cases of spastic ataxia present.  The man 
 
              -- obviously he's a good worker.  He tried to do his job.  
 
              He was making good money, he has to, and he tried to lift 
 
              those big, heavy tanks.  It was his job, and he lost his 
 
              equilibrium because of ataxia and fell, and this is an 
 
              indication that the thing was progressive, and it was 
 
              gradually worsening.
 
              
 
              Q.  And it progressed even while he was not working then in 
 
              July?
 
              
 
              
 
              
 
         SMITH V. ARMSTRONG RUBBER COMPANY 
 
         Page 7
 
         
 
         
 
              A.  It will even if he sits right there.
 
         
 
         (Transcript testimony of Dr. Wellington, page 30, line 19 through 
 
         page 32, line 19)
 
         
 
              Dr. Wellington testified further as to his difference of 
 
         opinion with Dr. Bakody as to causal connection.  He agreed with 
 
         Dr. Bakody that the head injury had the result of bringing 
 
         claimant to diagnosis, but disagreed as to whether it caused the 
 
         condition to worsen.  He further disagreed with Dr. Bakody's 
 
         conclusion that there was a cause and effect relationship between 
 
         the injury and the surgical procedure.  Dr. Wellington denied 
 
         that Dr. Bakody's opinion should be more persuasive, indicating 
 
         his belief that Dr. Bakody was showing signs of loyalty to 
 
         claimant (as the treating physician) and was biased.
 
         
 
              Although Dr. Wellington has not engaged specifically in the 
 
         practice of neurosurgery, he noted that he had worked with Dr. 
 
         Hayne and with Dr. Bakody for nine months during his training and 
 
         does peripheral neurosurgery, but no central nervous system 
 
         surgery.  He has assisted at such surgical procedures.
 
         
 
              When asked if he agreed with Dr. Bakody's impairment rating 
 
         of 15% of the body as a whole, Dr. Wellington did agree.
 
         
 
              When it was pointed out that Dr. Bakody is a board-certified 
 
         neurosurgeon and he was not, Dr. Wellington pointed out his 
 
         belief that the problem was not that demanding of a physician's 
 
         skills.  Dr. Wellington believed that he was in a better position 
 
         to judge the nature or the extent of the injury from the bump on 
 
         the head because of his having seen claimant immediately 
 
         following the injury and in the days thereafter.
 
         
 
              Dr. Wellington agreed that claimant could no longer perform 
 
         his duties as an operating engineer because of his condition of 
 
         ataxia with spasticity, but noted that he did not know of 
 
         claimant's condition before the injury.  He noted claimant's 
 
         history of previous injury showing lack of coordination and 
 
         spasticity.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Wellington was compensated by defendants for his 
 
         testimony and appearance.
 
         
 
              Dr. Bakody was the only other physician to express of record 
 
         an opinion as to whether a causal connection existed between the 
 
         work injury and claimant's disability.  Defendants' attorney 
 
         wrote to Dr. Bakody on May 8, 1987 and was answered on May 12.  
 
         Mr. Monson posed the following questions and Dr. Bakody answered 
 
         as follows:
 
         
 
              1.  Were Mr. Smith's walking problems pre-existing his 
 
              injury of June 21, 1985, a manifestation of his underlying 
 
              spondylotic compression myelopathy?
 
         
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY 
 
         Page 8
 
         
 
         
 
              A:   Probably so.
 
              
 
              2.   Did the head injury of 1985 cause Mr. Smith's 
 
              underlying condition to worsen or was it merely an event 
 
              that brought him to diagnosis?
 
              
 
              A:   Cause to worsen, but had the result of bringing him to 
 
              diagnosis.
 
              
 
              3.   Absent the head injury of 1985 would surgery have been 
 
              necessary to arrest the progress of his spondylotic 
 
              compressive myelopathy?
 
              
 
              A:   I do not know.
 
              
 
              Dr. Bakody's letter to Dr. Wellington of September 30, 1985 
 
         noted a discharge diagnosis of cervical radicular compression 
 
         with myopathy and described the surgery performed on September 
 
         18, 1985.  As noted previously, Dr. Bakody has imposed a 40-pound 
 
         lifting restriction on a permanent basis.
 
         
 
              Medical records of Dr. Socarras are also a part of the 
 
         record in this case.  His letter of July 19, 1985 to Dr. 
 
         Wellington notes that claimant admitted a former wife had noticed 
 
         that he was "walking somewhat funny before his injury of 1980" (a 
 
         fracture of the right tibia) and that claimant exhibited a 
 
         spastic jiggling type of a gait.  Dr. Socarras found a 
 
         neurological deficit and felt that claimant had a spondylotic 
 
         myelopathy due to compression of the spinal cord at C-5 and C-6; 
 
         he recommended an anterior decompression of the spinal cord at 
 
         those levels.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on June 21, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2,d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY 
 
         Page 9
 
         
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury (Citations omitted.]   
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury.  The result of changes in the human body incident 
 
              to the general processes of nature do not amount to a 
 
              personal injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted to 
 
              labor and hard work.  Such result of those natural changes 
 
              does not constitute a personal injury even though the same 
 
              brings about impairment of health or the total or partial 
 
              incapacity of the functions of the human body.
 
              
 
                  ....
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.]  The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              The Claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 21, 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 2.96, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary. Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).    
 
         The question of causal connection is essentially within the 
 
         domain of expert testimony.  Bradshaw v. Iowa Methodist Hospital, 
 
         251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection. 
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257
 
         
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY
 
         Page 10
 
         
 
         
 
         Iowa 516, 133 N.W.2d 867.  See also Musselman v. Central 
 
         Telephone
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The parties have stipulated that claimant suffered an injury 
 
         on June 21, 1985, which both arose out of and in the course of 
 
         his employment with defendant Armstrong Rubber Company.  The key 
 
         issue in this case is whether that injury has been shown to be 
 
         causally related to claimant's disability.
 
         
 
              Two physicians have rendered opinions as to whether such a 
 
         causal relationship exists.  Both were treating physicians, Dr. 
 
         Wellington at first, while Dr. Bakody was the main treating 
 
         physician and surgeon.  It is significant also that Dr. Bakody is 
 
         a board-certified neurosurgeon, while Dr. Wellington specialized 
 
         before his retirement in general surgery.
 
         
 
              The two physicians have presented directly contrary opinions 
 
         as to causal connection.  As this is the key issue in the case, 
 
         the opinion of one physician must be accepted and that of the 
 
         other rejected.  The question is one of fact, not of law, and 
 
         factors to be considered include the physician's relative 
 
         education, compensation, date of examination, experience, and the 
 
         like. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187 
 
         (Iowa 1985).   Normally in cases of such conflict, the opinion of 
 
         a board-certified surgeon may be preferred.  Richland v. Palco, 
 
         Inc., 32nd Biennial Report of Industrial Commissioner, 56 (1975); 
 
         Dickey v. ITT Continental Baking Co., 34th Biennial Report of 
 
         Industrial Commissioner, 89 (1979).  Of course, claimant bears 
 
         the burden of establishing this causal connection by a 
 
         preponderance of the evidence.  Preponderance of the evidence has 
 
         been held to mean the greater weight of the evidence; that is, 
 
         the evidence of superior influence or efficacy.  Bauer v. 
 
         Reavell, 219 Iowa 1212, 260 N.W. 39 (1935).  That burden is not 
 
         met by creating an equipoise.  Volk v. International Harvester 
 
         Co., 252 Iowa 298, 106 N.W.2d 649 (1960).  The undersigned finds 
 
         the testimony and opinion of Dr. Wellington to be more 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         persuasive, influential and efficacious than that of Dr. Bakody.  
 
         Although Dr. Bakody specified that he believed a causal 
 
         connection existed between the work injury and claimant's 
 
         subsequent surgery (and disability), nothing of record shows what 
 
         Dr. Bakody considered in reaching that conclusion.  Dr. 
 
         Wellington took into account that claimant had a lengthy history 
 
         of spastic ataxic problems with his lower extremities, manifested 
 
         by a peculiar gait, and further took into account CT scans and 
 
         myelograms showing the impingement of bony spurs upon claimant's 
 
         spinal cord.  These were described as very large and of perhaps 
 
         5-7 years' duration, which is again consistent with claimant's 
 
         spastic ataxic condition.  Dr. Wellington describes the issue as 
 
         a simple one, and there is no contrary indication of record.  
 
         That is, this is a condition that appears well within Dr. 
 
         Wellington's ability to render an informed and persuasive 
 
         opinion.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY
 
         Page 11
 
         
 
         
 
              The surgery performed by Dr. Bakody was an attempt to remove 
 
         the bony spurs impinging upon claimant's spinal cord.  A fusion 
 
         was also involved.  This is entirely consistent with the theory 
 
         that claimant's condition was entirely preexisting and simply 
 
         brought to a speedier diagnosis by the work injury, and there is 
 
         no shred of evidence in this record explaining why Dr. Bakody may 
 
         have felt that the work injury actually worsened this condition.  
 
         Dr. Wellington's view that the surgery would eventually have been 
 
         necessary in any event and that the work injury was a "blessing 
 
         in disguise" in bringing this problem to medical attention 
 
         earlier than might otherwise have been the case is persuasive.
 
         
 
              At the very most, claimant's evidence might be said to have 
 
         created an equipoise, although the undersigned is of the view 
 
         that it failed even to reach that level.  Even if it did, an 
 
         equipoise is insufficient to meet claimant's burden.  It is held 
 
         that claimant has failed to establish entitlement to healing 
 
         period or permanent partial disability benefits.  Similarly, the 
 
         undersigned accepts Dr. Wellington's view that claimant's 
 
         surgical procedure would have been necessary at a later time in 
 
         any event and was not causally related to the work injury.
 
         
 
              Claimant did suffer a work injury and this immediately 
 
         caused loss of work.  Claimant was injured on June 21, but the 
 
         sutures were removed on June 28, 1985.  Claimant was not returned 
 
         to work at that time by reason of his head injury, but due to his 
 
         neurological deficit.  While the head injury was directly related 
 
         to claimant's work injury, as has been seen, claimant's 
 
         neurological problems have not been shown to be so related.  
 
         Claimant is entitled to temporary total disability from June 21, 
 
         1985 through June 2.8, 1985, but it has been stipulated that 
 
         defendants have already paid five and three-sevenths weeks of 
 
         compensation, which is well beyond claimant's entitlement to 
 
         temporary total disability.
 
         
 
              Claimant argues that he is entitled to permanent partial 
 
         disability benefits because he was not returned to the same job, 
 
         even if Dr. Wellington's view be accepted.  However, this is 
 
         based on a misconception of the record.  He was not given a 
 
         different job due to his injury, but due to the weight 
 
         restriction, which in itself is not causally connected to the 
 
         work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1.  Claimant has a history of a spastic-ataxic neurological 
 
         problem extending over a number of years which has manifested 
 
         itself in the form of a peculiar gait.
 
         
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY
 
         Page 12
 
         
 
         
 
              2.  Claimant's preexisting neurological problem, for which 
 
         he underwent an anterior cervical interbody fusion at C-5 and C-6 
 
         on September 17, 1985 has been diagnosed as a spondylotic 
 
         compressive myelopathy.
 
         
 
              3.  Claimant suffered a work-related injury on June 21, 
 
         1985, when he fell backwards, injuring the back of his head.  
 
         This injury was diagnosed as a contused laceration in the 
 
         occipital region.
 
         
 
              4.  There has been shown to be no relationship between 
 
         claimant's work injury and his spondylotic myelopathy, which was 
 
         preexisting and which would have required medical treatment even 
 
         had the work injury never occurred; however, the work injury did 
 
         assist in speeding up diagnosis of the neurological problem.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the principles of law previously 
 
         cited, the following conclusions are made:
 
         
 
              1.  Claimant has failed to establish by his burden of proof 
 
         that the stipulated work injury of June 21, 1985, is causally 
 
         related to his surgical procedure, healing period, medical 
 
         expenses, or related permanent partial disability.
 
         
 
              2.  Claimant has established entitlement to temporary total 
 
         disability resulting from his work injury from June 21 through 
 
         June 28, 1985; however, he has already been compensated for this 
 
         disability by defendants.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That claimant shall take nothing from this proceeding.
 
         
 
              That costs of this action shall be assessed against 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this .30th day of March, 1989.
 
         
 
         
 
                                         DAVID RASEY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SMITH V. ARMSTRONG RUBBER COMPANY
 
         Page 13
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Terry L. Monson
 
         Attorney at Law
 
         100 Court Avenue, Suite 600
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50, 1402.30
 
                                                 Filed March 30, 1989
 
                                                                     DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD P. SMITH,
 
         
 
              Claimant,
 
                                                      File No. 798385
 
         
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         
 
         ARMSTRONG RUBBER COMPANY,
 
                                                      D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 1402.30
 
         
 
              Claimant failed to meet burden of proof that stipulated work 
 
         injury caused permanent disability, where injury only brought 
 
         preexisting condition to physician's attention.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK C. GOODE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 798415
 
                                          :                   813084
 
            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                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 These are proceedings in arbitration upon claimant's 
 
            petitions filed December 9, 1988.  Claimant sustained a 
 
            cumulative injury to his shoulder arising out of and in the 
 
            course of his employment on June 5, 1985, and an injury 
 
            arising from a single traumatic incident on January 3, 1986, 
 
            also arising out of and in the course of employment.  He now 
 
            seeks benefits under the Iowa Workers' Compensation Act from 
 
            his employer, George A. Hormel & Company, and its insurance 
 
            carrier, Liberty Mutual Insurance Company.
 
            
 
                 Hearing on the arbitration petitions was had in 
 
            Ottumwa, Iowa, on October 26, 1990.  The record consists of 
 
            joint exhibits 1 through 14 and claimant's testimony.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained injuries arising out of 
 
            and in the course of his employment on June 5, 1985 and 
 
            January 3, 1986; that healing period or temporary total 
 
            disability benefits have been paid in full; the appropriate 
 
            rate of compensation for each injury; that medical benefits 
 
            are no longer in dispute; that defendants paid certain 
 
            benefits on a voluntary basis prior to hearing as set forth 
 
            in the prehearing report.
 
            
 
                 Issues presented for resolution include:  whether 
 
            either work injury caused permanent disability, and if so, 
 
            the nature and extent thereof.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            considered all of the evidence, finds:
 
            
 
                 After working in various other jobs, claimant, 36 years 
 
            of age at hearing, began employment with defendant in 
 
            October, 1978.  He worked various jobs with defendant up 
 
            until the plant closed in August, 1987.
 
            
 
                 After years of work in the ham boning department, 
 
            claimant one day suffered a "snapping" sensation in his left 
 
            shoulder joint, which slowly became worse over several 
 
            weeks.  Claimant left work from this injury pursuant to the 
 
            stipulation of the parties.
 
            
 
                 Claimant eventually returned to work in fall, 1985, to 
 
            a bid job as a forklift operator.  Claimant described his 
 
            pain as being substantially relieved and there is no showing 
 
            that he was under medical restrictions, permanent or 
 
            otherwise, at that time.
 
            
 
                 On January 3, 1986, claimant caught the fingers of his 
 
            left hand in a spinning steering wheel while operating the 
 
            forklift, causing a hyperextension injury to the fingers and 
 
            arm.  In February, a cast was applied and claimant found 
 
            that the additional weight caused additional soreness and 
 
            irritation to his shoulder.
 
            
 
                 Claimant was last treated for his shoulder in 1986.  He 
 
            now complains of pain and a diminished range of motion in 
 
            his left shoulder along with occasional pain in the left 
 
            hand shooting up to his elbow, but he notices no correlation 
 
            with activity.  Claimant was unable to express an opinion as 
 
            to how much weight he can lift either as a maximum or on a 
 
            frequent basis, although he claims that up to one-third of 
 
            the time he is incapable of lifting any weight whatsoever.
 
            
 
                 The first treating physician was Jack W. Brindley, M.D.  
 
            Dr. Brindley originally felt that claimant suffered a 
 
            subacromial impingement syndrome, but on January 30, 1986, 
 
            wrote that it was tough to get a handle on claimant's 
 
            symptomatology and a specific diagnosis, but felt that the 
 
            prognosis was guarded.  In a January 16, 1986 surgeon's 
 
            report, Dr. Brindley opined that the June 5, 1985 injury was 
 
            the sole cause of claimant's shoulder condition.  As of 
 
            February 26, claimant had full range of motion, but still 
 
            complained of pain and aching at night.
 
            
 
                 The record does not reflect that Dr. Brindley expressed 
 
            a view as to whether claimant sustained permanent impairment 
 
            of the shoulder, fingers or hand with respect to either work 
 
            injury.
 
            
 
                 Dr. Brindley referred claimant to James V. Nepola, 
 
            M.D., of the University of Iowa Hospitals and Clinics, 
 
            Department of Orthopaedic Surgery.  Dr. Nepola's notes of 
 
            March 7, 1986, reflect that review of outside arthrogram and 
 
            radiographs demonstrated no significant abnormalities.  On 
 
            an assessment of possible anterior subluxation, he planned 
 
            an arthrotomogram of the left shoulder.  An arthrogram of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            that date performed by Dr. El-Khoury and Dr. Burton was read 
 
            as normal with no evidence of rotator cuff tear.  The 
 
            shoulder joint was seen as intact with no abnormality of 
 
            cartilage or bone other than an incidentally noted bone 
 
            island in the humeral head.
 
            
 
                 On March 28, 1986, Mark Kritchevsky, M.D., of the 
 
            Department of Neurology, found mild atrophy in the left arm 
 
            likely due to significant disuse, but generally felt that 
 
            left shoulder pain was due to an orthopaedic rather than 
 
            neurologic problem.
 
            
 
                 Claimant was seen by various of Dr. Nepola's associates 
 
            on March 11, April 8, and May 16, 1986.  On the first date, 
 
            claimant reported his shoulder essentially back to normal 
 
            with unchanged symptoms.  In April, claimant had a full 
 
            range of motion with slightly decreased muscle strength on 
 
            internal and external rotation of the shoulder, but no gross 
 
            atrophy.  Claimant was given a steroid injection and work 
 
            restrictions.  On May 16, claimant again revealed full range 
 
            of motion and normal strength in all directions with no 
 
            atrophy noted.  Dr. Miller had an impression of left 
 
            shoulder bursitis.  Claimant was offered but refused an 
 
            additional injection and was given further work restrictions 
 
            and a follow-up appointment which he did not keep.
 
            
 
                 On April 18, 1989, Dr. Nepola wrote claimant's attorney 
 
            after a return visit some two years and four months later.  
 
            Dr. Nepola believed that claimant's underlying problem was 
 
            instability of the shoulder and noted that bursitis had 
 
            calmed down, probably due to the change in occupation with 
 
            less repetitive motion and stress.  It was decided that 
 
            surgical intervention was unwarranted.  Examination of 
 
            January 3, 1989 showed no complaint of tenderness and no 
 
            instability.  "It was felt that he was doing well and that 
 
            the combination of reduced strain on the shoulder with his 
 
            new employment coupled with the exercise program which he 
 
            was following was successfully treating his underlying 
 
            functional shoulder instability."
 
            
 
                 Dr. Nepola commented further that he did not believe 
 
            claimant to have a permanent partial impairment, but that he 
 
            had a disability in that he should not return to his job as 
 
            a meat packer.  Dr. Nepola did not express a view as to 
 
            whether this "underlying functional shoulder instability" 
 
            was caused by or preexisted either work injury.
 
            
 
                 Claimant was also seen for evaluation by Thomas Bower, 
 
            L.P.T., on July 31, 1990.  Mr. Bower found some limitations 
 
            caused by pain and noted crepitation, although not isolated 
 
            to the glenohumeral joint.  He found claimant's range of 
 
            motion to be mildly restricted and on the basis that these 
 
            restrictions would vary from day to day believed claimant to 
 
            have no permanent impairment, but agreed that claimant 
 
            should refrain from overhead activities.
 
            
 
                                conclusions of law
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The parties dispute whether claimant's stipulated work 
 
            injuries caused permanent disability.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of June 5, 
 
            1985 and January 3, 1986 are causally related to the 
 
            disability on which he now bases his claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            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 evidence shows that claimant may have an underlying 
 
            instability of his left shoulder of undisclosed nature.  
 
            Certainly, as stipulated, repetitive work lighted up, 
 
            aggravated or caused a flare-up of symptoms.  However, 
 
            temporary or healing period benefits are not at issue.
 
            
 
                 With respect to permanency, it remains claimant's 
 
            burden to prove that any permanent condition is causally 
 
            related to the work injury.  On this record, it is 
 
            impossible to determine whether the work injury caused the 
 
            underlying shoulder instability, or whether that instability 
 
            predated and was brought out by the work injury.  That is to 
 
            say, if the work injury caused the instability, claimant 
 
            should be entitled to permanent partial disability because 
 
            he has medical restrictions and injuries to the shoulder 
 
            joint are normally compensated industrially as an injury to 
 
            the body as a whole.  Roach v. Firestone Tire & Rubber Co., 
 
            file number 806034 (App. Decn., August 24, 1989).  On the 
 
            other hand, if the underlying instability predated the 
 
            repetitive motion injury of 1985, claimant would be entitled 
 
            to temporary total disability benefits during such times as 
 
            he suffered work-related flare-ups of the condition, but a 
 
            causal nexus would not exist between the employment and 
 
            permanent restrictions, since the restrictions would be 
 
            based upon the underlying or preexisting condition.  Pain, 
 
            absent objective findings, is not equivalent to impairment.  
 
            Waller v. Chamberlain Mfg., II Iowa Industrial Commissioner 
 
            Report 419 (1981).
 
            
 
                 It is held that claimant has failed to meet his burden 
 
            of proof in establishing a causal nexus between his shoulder 
 
            instability and either work injury.  The record does not 
 
            reflect that claimant suffers permanent impairment to his 
 
            fingers, hand or arm by reason of the 1986 injury.  
 
            Therefore, there can be no recovery.
 
            
 
                                      order
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from this 
 
            proceeding.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. H. Edwin Detlie
 
            Attorney at Law
 
            114 North Market Street
 
            Ottumwa, Iowa  52501
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 West Second Street
 
            P.O. Box 716
 
            Ottumwa, Iowa  52501
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY JONES,
 
                                                      File No. 798447
 
             Claimant,
 
         
 
         VS.                                       A R B I T R A T I 0 N
 
         
 
         ALUMINUM COMPANY OF AMERICA,                 D E C I S I O N
 
         
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration filed by Gary Jones, 
 
         claimant, against Aluminum Company of America, employer, 
 
         self-insured, for benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury sustained June 27, 1985.  The matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner September 29, 1987, and was considered fully 
 
         submitted at the close of hearing.
 
         
 
              The record in this case consists of the testimony of the 
 
         claimant, George Pratt, and Harry Ney; and exhibits 1 through 19, 
 
         inclusive.
 
         
 
                                      ISSUES
 
         
 
              The issues presented for resolution are:
 
         
 
              1.  Whether a causal connection exists between the 
 
         claimant's asserted disability and the accident in question;
 
         
 
              2.  Claimant's entitlement to temporary total disability/ 
 
         healing period benefits; and
 
         
 
              3.  Claimant's entitlement to compensation for permanent 
 
         disability.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Thirty-five year old claimant, Gary Jones, testified: He was 
 
         hired by defendant employer in March 1984, after having also 
 
         worked at Deere & Company as a manual laborer.  Claimant 
 
         presented that he was working in the foil mill as a helper on 
 
         June 27, 1985 when one of the mills exploded causing burns to his 
 
         face,
 
         neck, head, torso, and upper extremities.  After some attempts at 
 
         first aid, he recalled he was taken to Franciscan Hospital and 
 
         was admitted to the burn unit under the care of Antonio F. 
 
         Bernas, M.D., and had been visited by Thomas P. Dhanens, Ph.D., 
 
         Clinical Psychologist.  Claimant described his care as daily 
 
         debridement with new dressings applied and that he was discharged 
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page   2
 
         
 
         
 
         to recuperate at home after his 17 or 19 day hospital stay.
 
         
 
              Claimant recalled he returned to his regular job in the foil 
 
         mill September 15, 1985, with uneasy feelings.  He was stationed 
 
         on a different machine and worked without incident until 
 
         approximately September 23, 1985, when another mill caught fire.  
 
         Although he was not burned, claimant described feeling symptoms 
 
         associated with an anxiety attack.  He reported to the medical 
 
         department and was sent home.  The following day he recalled he 
 
         saw Dr. Bernas and was referred to another psychologist, Joseph 
 
         S. Maciejko, Ph.D.  Claimant acknowledged he returned to work 
 
         again but asked for a transfer away from the mills.  He worked 
 
         until the end of the shift September 28 and determined that he 
 
         could not return to work.
 
         
 
              Claimant offered he began treating with Dr. Maciejko 
 
         September 30, 1985, for stress management, relaxation, and fear 
 
         therapy.  On about September 15, 1986, claimant asserted he 
 
         advised Dr. Maciejko that he was capable of returning to work or 
 
         looking for work.  He recalled being released to return to work 
 
         with restrictions that he not work in the same department or with 
 
         flames or heat producing equipment which might tend to remind him 
 
         of the accident.  He returned to work November 17, 1986, 
 
         initially to the cold mill department but complained he did not 
 
         feel he could safely work there.  He was then transferred to the 
 
         shear room and acknowledged he was still working there as of the 
 
         time of the hearing.  As a comparison of the two jobs, claimant 
 
         testified that when in the foil mill, he was labor grade 7 and 
 
         his maximum level of advancement was a labor grade 18; in the 
 
         shear room, he is a labor grade 2 with a maximum level of 
 
         advancement to a labor grade 15.
 
         
 
              Claimant offered his health before the accident was 
 
         excellent both physically and mentally but since, he is sensitive 
 
         to cold, sun, and is bothered by anything to do with fire from 
 
         camping to the furnace or stove in his home to watching TV to 
 
         bright flashes such as that from a camera.  He admitted to a fear 
 
         of getting skin cancer and of self-consciousness over his 
 
         scarring.  On cross-examination, he revealed he has not missed 
 
         any work since his return November 17, 1986, as a result of his 
 
         accident, has not reported to the medical department at work, has 
 
         not seen any health care provider for any accident-related 
 
         problems, has not left the work premises during work because of 
 
         anxiety, and has been able to deal with all aspects of his job.  
 
         Claimant also acknowledged that he has been able to work all of 
 
         the hours required of him (alternate 40 and 56 hour weeks) and 
 
         his scarring does not cause any physical impairment to his job, 
 
         although he is sensitive to solvents and has trouble with 
 
         overhead lifting.
 
         
 
              George Pratt, Jr., testified he is the safety, health and 
 
         environmental manager for the Davenport Works and had 
 
         administered the claimant's claim.  He explained that at the time 
 
         of his injury, claimant was a foil mill operator helper 
 
         (servicer) working about 45 hours per week at a base rate of 
 
         $12.083 per hour and that there has been no change in that base 
 
         rate since that time.  He offered that the claimant is 
 
         still,considered a helper in the shear room and although he 
 
         assists on a different machine both jobs require the same kind of 
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page   3
 
         
 
         
 
         skills.  He identified claimant's current rate of pay as $12.21 
 
         per hour with an average of 47 to 48 hours work per week.  He 
 
         denied receiving any reports claimant could not do his job.  He 
 
         further explained that at about the same time the claimant left 
 
         work in September 1985, a reduction in force took place at the 
 
         plant.  Based on his seniority, the claimant would be affected by 
 
         the layoff.  Workers' compensation benefits had ceased when the 
 
         claimant originally returned to work earlier in September and 
 
         were reinstituted only after further information from Dr. 
 
         Maciejko advised claimant was still under treatment.
 
         
 
              Harry Ney testified he is the employment supervisor and 
 
         hourly wage administrator.  He affirmed the wage information 
 
         provided by George Pratt and offered that although the maximum 
 
         pay grade in the foil mill (grade 19) was higher than in the 
 
         shear department (grade 16) claimant's chances for advancement in 
 
         the shear department (43 pay grade 16 positions out of 173 total 
 
         department employees) were greater than in the foil mill (39 pay 
 
         grade 19 positions out of 200 employees).  He identified the 
 
         employer's promotion policy as seniority based.
 
         
 
              Claimant was referred to Dr. Maciejko by Dr. Bernas in 
 
         September 1985, under a diagnosis of post-traumatic stress 
 
         disorder. (Exhibit 2)  By October 1985, Maciejko felt claimant 
 
         had "shown a visible reduction in anxiety level" but much of this 
 
         was likely due to the fact of his layoff status. (Ex. 5)  By May 
 
         1986, claimant was on maintenance level therapy but could not "be 
 
         said to have fully recovered from his stress disorder in the 
 
         absence of contact with the work environment..." (Ex. 17, p. 7.)  
 
         Claimant continued in active treatment until October 1986, when, 
 
         according to Maciejko, "it was apparent that he had achieved 
 
         maximum benefit under the present circumstances in his recovery 
 
         ... " (Ex. 7) Maciejko last saw claimant September 29, 1986 and 
 
         on October 17, 1986 opined "on the whole, he has achieved 
 
         functional recovery .... I am, therefore, considering his case 
 
         closed as recovered." (Ex. 8)
 
         
 
         
 
              Claimant was last seen by Dr. Bernas November 6, 1986 who 
 
         felt his burns had healed very well with no obvious scar 
 
         contractures.  Bernas opined that claimant "sustained 5% 
 
         impairment based on reduced sensation of...burned skin." (Ex. 11) 
 
         In July 1986, claimant indicated he was not hearing well and was 
 
         referred to Robert D. Lelonek, M.D., for an audiogram which 
 
         showed normal hearing in the right ear and minimal loss in the 
 
         left ear.  Lelonek stated "it is impossible for me to say...that 
 
         the patient's hearing loss is definitely due to the recent 
 
         accident.O (Ex. 12)  No treatment was recommended. (Ex. 17, p. 8)  
 
         Claimant was seen on two occasions for the purpose of evaluation 
 
         by Barry Lake Fischer, M.D.  In November 1985, (Ex. 1) Dr. 
 
         Fischer opined claimant sustained injuries resulting in permanent 
 
         partial impairment of the person as a whole of 25 percent.  Seen 
 
         again one year later, his opinion did not change. (Ex. 9)  
 
         Claimant was also seen by Thomas P. Dhanens, Ph.D., Clinical 
 
         Psychologist, for psychological evaluation on October 17, 1986, 
 
         who made a "professional judgment that the total loss is around 
 
         25% of the whole man." (Ex. 6)
 
         
 
                                  APPLICABLE LAW
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page   4
 
         
 
         
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 27, 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. 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).
 
         
 
              The term injury includes mental ailments or a nervous 
 
         conditions which arise as a consequence of physical trauma.  
 
         Deaver v. Armstrong Rubber Company, 170 N.W.2d 455, 466 (Iowa 
 
         1969).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page   5
 
         
 
         
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
         
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the : employer shall pay compensation for a healing period from 
 
         the day of the injury until (1) the employee returns to work; or 
 
         (2) it is medically indicated that significant improvement from 
 
         the injury is not anticipated; or (3) until the employee is 
 
         medically capable of returning to substantially similar employ- 
 
         ment.
 
         
 
              By the very meaning of the phrase, a person with a 
 
              Opermanent disability" can never return to the same physical 
 
              condition he or she had prior to the injury.....  See, 2 A. 
 
              Larson, The Law of Workmen's Compensation SS57.12 (1981).  
 
              The healing period may be characterized as that period 
 
              during which there is reasonable expectation of improvement 
 
              of the disabling condition," and ends when maximum medical 
 
              improvement is reached.  Boyd v. Hudson Pulp & Paper Corp., 
 
              177 So.2d 331, 330 (Fla.1965). That is, it is the period 
 
              "from the time of the injury until the employee is as far 
 
              restored as the permanent character of his injury will 
 
              permit."  Winn Drilling Company v. Industrial Commissioner, 
 
              32 Ill.2d 144, 145-6, 203 N.E.2d 904, 905-6 (1965).  See 
 
              also W. Schneider, Schneider's Workmen's Compensation, S 
 
              2308 (1957).  Thus, the healing period generally terminates 
 
              "at the time the attending physician determines that the 
 
              employee has recovered as far as possible from the effects 
 
              of the injury.  Winn, 203 N.E. at 906.
 
         
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 
 
         1981).
 
         
 
              A healing period may be interrupted by a return to work. 
 
         Riesselman v. Carroll Health Center, 3 Iowa Industrial 
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page   6
 
         
 
         
 
         Commissioner Reports 209 (Appeal Decision 1982).
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)(u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
                                     ANALYSIS
 
         
 
              With the exception of the alleged hearing loss, claimant has 
 
         shown a causal connection between his disability on which he now 
 
         bases his claim and his injury of June 27, 1985.  Reviewing the 
 
         opinion of Dr. Lelonek, along with the audiograms performed both 
 
         before and after the accident as well as the claimant's 
 
         testimony, it cannot be found that the claimant first, has any 
 
         definable hearing loss and second, that any perceived hearing 
 
         loss can be attributed to the injury of June 27, 1985.  However, 
 
         claimant attests to excellent health, both mental and physical, 
 
         prior to the injury and it cannot be disputed his injury has 
 
         caused him disability.
 
         
 
              The question of particular importance to be resolved is the 
 
         amount of permanent partial disability had by the claimant.  
 
         Claimant is 35 years old and has made his way as a manual 
 
         laborer.  He has no apparent specialized training in any other 
 
         field and appears to be of average intellectual ability.
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page   7
 
         
 
         
 
         
 
              It is accepted that the claimant currently possesses an 
 
         inability to withstand being near to or working with heat 
 
         producing equipment.  As a result, his chances of advancement at 
 
         his present employment are somewhat limited, in that he is 
 
         restricted from working in all parts of the plant.  However, he 
 
         is currently employed in a position paying a higher wage with a 
 
         greater potential for promotion than the position he held at the 
 
         time of his accident.  It is obvious his employer is willing to 
 
         work with the claimant within his employment restrictions.  He 
 
         appears motivated, thoroughly able to perform all of the 
 
         responsibilities of his job and has missed no further work as a 
 
         result of the injury since November 17, 1986.  There is no 
 
         question he has an increased sensitivity of his skin as a result 
 
         of the burns.  However, he is not currently under any continued 
 
         medical care and there appears to be minimal interference with 
 
         his activities as a result of the injury and particularly as a 
 
         result of the scarring.  While claimant testified extensively how 
 
         his psychological trauma has interfered with his personal and 
 
         family life, industrial disability relates to the loss of earning 
 
         capacity not the loss of lifestyle.  The latter is only relevant 
 
         as it affects the former.  While claimant may have had to make 
 
         adjustments in his lifestyle, the adjustments have not 
 
         significantly affected his earning capacity.
 
         
 
              Claimant was regularly seen by Drs. Bernas and Maciejko 
 
         throughout his recuperation.  He was seen for evaluation only by 
 
         Drs. Fischer and Dhanens.  Dr. Fischer opined claimant's 
 
         impairment to be 25 percent of the person as a whole.  Dr. 
 
         Dhanens, in his report of psychological evaluation, states "there 
 
         being a lack of established professional guidelines for 
 
         determining psychological disability, such as there is for 
 
         orthopedic disability, for example, I would make a professional 
 
         judgement that the total loss is around 25% of the whole man."  
 
         It is troubling that Dr. Dhanens refers to "disability"--which is 
 
         for the trier of fact to determine--rather than 
 
         "impairment"--which is the domain of the witness.  It appears Dr. 
 
         Dhanens is invading the province of the industrial commissioner 
 
         when rating claimant's industrial disability rather than 
 
         evaluating only his functional impairment.  Wright v. Walter 
 
         Kidde Company, 33 Biennial Report of the Industrial Commissioner 
 
         237 (Appeal Decision 1977).  For this reason, the opinion of Dr. 
 
         Dhanens is given little weight.  Dr. Bernas opined that claimant 
 
         sustained a five percent impairment based on reduced sensation of 
 
         the burned skin and Dr. Maciejko has rated the claimant as 
 
         functionally recovered.
 
         
 
              The opinions of Drs. Bernas and Maciejko will be accepted as 
 
         being entitled to greater weight than Drs. Fischer and Dhanens.  
 
         Dr. Bernas regularly treated and last saw the claimant and had a 
 
         greater opportunity to evaluate claimant's impairment over a 
 
         longer period of time.  Likewise, Dr. Maciejko had the 
 
         opportunity to take the claimant from his lowest point in 
 
         post-traumatic stress to his ability to return to work.  
 
         Considering then, the elements of industrial disability, it is 
 
         found that claimant sustained an eight percent disability for 
 
         industrial purposes as a result of his injury of June 27, 1985.
 
         
 
              The last question for resolution then becomes the 
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page   8
 
         
 
         
 
         determination of the healing period.  Claimant prays for a 
 
         healing period from June 27, 1985 through September 15, 1985, 
 
         inclusively, and September 30, 1985 through November 16, 1986.  
 
         Defendants assert claimant reached maximum healing as of May 22, 
 
         1986, but, at the latest, the period should end September 29, 
 
         1986.
 
         
 
              It is recognized there are three possible dates healing 
 
         period could end: May 22, 1986, when Dr. Maciejko wrote "present 
 
         plans are to continue periodic, maintenance level therapy, with 
 
         further therapeutic adjustments as necessary when he returns to 
 
         work.O (Ex. 17, p. 7); October 1, 1986, when claimant was 
 
         released from care after his last appointment with Dr. Maciejko 
 
         September 29, 1986; and November 17, 1986 when claimant returned 
 
         to work.  The industrial commissioner has repeatedly held that 
 
         healing period does not continue when a claimant is receiving 
 
         treatment that is maintenance in nature.  Derochie v. City of 
 
         Sioux City, II Iowa Industrial Commissioner Report 112 (Appeal 
 
         Decision 1982).  While argument could be made that the claimant's 
 
         treatment from May 22 through October 1 was maintenance level, 
 
         when consideration is given to Dr. MaciejkoOs later statements 
 
         and claimant's own testimony on his treatment during that period 
 
         of time, it is evident that the treatment given after May 22 was 
 
         more than maintenance level.  However, by October 1986, claimant 
 
         was considered functionally recovered and his case closed.  
 
         Maciejko opined that by this time, the claimant achieved maximum 
 
         benefits in his recovery from his post-traumatic disorder.  It 
 
         is, therefore, found that the claimant's healing period includes 
 
         the period from June 22, 1985 through September 15, 1985, 
 
         inclusive, and September 30, 1985 through October 1, 1986, 
 
         inclusive.  In accordance with Iowa Code section 85.34(2). 
 
         permanent partial disability benefits shall commence October 2, 
 
         1986.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant is a 35 year old manual laborer with no 
 
         specialized training.
 
         
 
              2.  Claimant suffered an injury June 27, 1985, when a foil 
 
         mill exploded causing burns to his face, neck, head, torso, and 
 
         upper extremities requiring hospitalization and medical 
 
         treatment.
 
         
 
              3.  Claimant was released from medical care, returned to 
 
         work September 15, 1985, and worked until September 28, 1985, at 
 
         which time he came under the care of Joseph S. Maciejko, Ph.D., 
 
         Clinical Psychologist, for treatment of post-traumatic stress 
 
         disorder and was unable to work.
 
         
 
              4.  Claimant was last seen by Dr. Maciejko September 29, 
 
         1986, and was termed functionally recovered as of October 1986.
 
         
 
              5.  Claimant was release!d to return to work with the 
 
         restrictions that he not be placed in a work setting similar to 
 
         that where he was injured.
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page   9
 
         
 
         
 
         
 
              6.  Claimant returned to work November 17, 1986 and is 
 
         working in an environment compatible with his medical 
 
         restrictions.
 
         
 
              7.  Claimant's wages have increased since his injury and his 
 
         chances for promotion are greater currently than before his 
 
         injury.
 
         
 
              8.  Claimant is able to perform all the responsibilities of 
 
         his job, has missed no work as a result of his injury since 
 
         November 17, 1987, has not been under the care of any health care 
 
         provider since his return to work, has not complained to company 
 
         medical personnel, and has been working more hours per week on 
 
         the average since his injury than before.
 
         
 
              9.  Claimant is sensitive to cold, sun, heat producing 
 
         equipment, solvents and has some difficulty with overhead lifting 
 
         and arm fatigue.
 
         
 
             10.  Audiograms show any loss of hearing to the claimant is
 
         minimal and not requiring treatment.
 
         
 
             11.  Claimant has an eight percent (8%) industrial 
 
         disability as a result of his injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the principles of law previously 
 
         stated, the following conclusions of law are made:
 
              
 
              1.  Claimant has established by a preponderance of the 
 
         evidence a causal connection between his injury and the 
 
         disability on which he now bases his claim except he has not met 
 
         his burden of establishing a causal connection between his 
 
         perceived hearing loss and his injury.
 
         
 
              2.  Claimant is entitled to healing period benefits from 
 
         June 27, 1985 through September 15, 1985, inclusive, and 
 
         September 30, 1985 through October 1, 1986, inclusive.
 
         
 
              3.  Claimant has met his burden of proving an industrial 
 
         disability of eight percent (8%) as a result of his June 27, 1985 
 
         injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant sixty four (64) weeks of 
 
         healing period benefits at the stipulated rate of three hundred 
 
         thirty-seven and 78/100 dollars ($337.78) per week.
 
         
 
              Defendant is to pay unto claimant forty (40) weeks of 
 
         permanent partial disability benefits at a rate of three hundred 
 
         thirty-seven and 78/100 dollars ($337.78) per week commencing 
 
         October 2, 1986.
 
         
 
              Defendant shall receive full credit for the ninety-five 
 

 
         
 
         
 
         
 
         JONES V. ALUMINUM COMPANY OF AMERICA
 
         Page  10
 
         
 
         
 
         point 247 (95.247) weeks of compensation previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A final report shall be filed upon payment of this award.
 
         
 
              Costs of this action are assessed against the defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of October, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Building
 
         Rock Island, Illinois 61201
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1802; 1803
 
                                                       Filed 10-26-87 
 
                                                       Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GARY JONES,
 
         
 
              Claimant,                              File No. 798447
 
         
 
         VS.
 
         
 
                                                  A R B I T R A T I 0 N 
 
         ALUMINUM COMPANY OF AMERICA,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         1802; 1803
 
         
 
              Claimant, burned in a foil mill explosion who returned to 
 
         work and subsequently left again because of inability to cope 
 
         with the environment, found to have two healing periods.  When he 
 
         returned to work, employer accommodated all medical restrictions. 
 
          Claimant found to have an 8% industrial disability.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT L. YOUNGREN, II,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 798464
 
            MacMILLAN OIL COMPANY, INC.,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 Claimant appeals from a ruling on application to 
 
            reconsider filed on January 24, 1989 which ordered claimant 
 
            to pay unto the defendants $1,892.33 as costs of the prior 
 
            action.
 
            
 
                                      issue
 
            
 
                 Claimant raises the issue of whether defendants' 
 
            application for assessment of costs should have been 
 
            granted.
 
            
 
                              review of the evidence
 
            
 
                 On January 28, 1987 claimant filed a petition for 
 
            benefits as a result of an alleged injury of July 5, 1985.  
 
            On August 18, 1988 a hearing was held.  On the day of 
 
            hearing the parties filed a Pre-hearing Report & Order 
 
            Approving Same which indicated that a statement of costs 
 
            will be filed.
 
            
 
                 On September 26, 1988 an arbitration decision was filed 
 
            which found against the claimant in favor of the defendants.  
 
            The order stated:
 
            
 
                   Claimant shall take nothing further from this 
 
                 proceeding.
 
            
 
                   The costs of this action are assessed against 
 
                 the claimant pursuant to Division of Industrial 
 
                 Services Rule 343-4.33.
 
            
 
                 On October 17, 1988 claimant filed a request for 
 
            rehearing.  An order denying a rehearing was filed on 
 
            October 24, 1988.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 On December 21, 1988 defendants filed an application 
 
            for specific assessment of costs.  That document indicates 
 
            that the original was filed and a copy was mailed to 
 
            claimant's attorney.  No resistance was filed by claimant.  
 
            On December 27, 1988 the deputy entered an order indicating 
 
            he lacked jurisdiction to rule on defendants' application.
 
            
 
                 On January 4, 1989 defendants filed an application to 
 
            reconsider.  The deputy, on January 24, 1989, filed a ruling 
 
            on defendants' application to reconsider which is now the 
 
            basis of this appeal.
 
            
 
                                  applicable law
 
            
 
                 Division of Industrial Services Rule 343-4.33 states:
 
            
 
                   Costs taxed by the industrial commissioner or a 
 
                 deputy commissioner shall be (1) attendance of a 
 
                 certified shorthand reporter or presence of 
 
                 mechanical means at hearings and evidential 
 
                 depositions, (2) transcription costs when 
 
                 appropriate, (3) costs of service of the original 
 
                 notice and subpoenas, (4) witness fees and 
 
                 expenses as provided by Iowa Code sections 622.69 
 
                 and 622.72, (5) the costs of doctors' and 
 
                 practitioners' deposition testimony, provided that 
 
                 said costs do not exceed the amounts provided by 
 
                 Iowa Code sections 622.69 and 622.72, (6) the 
 
                 reasonable costs of obtaining no more than two 
 
                 doctors' or practitioners' reports, (7) filing 
 
                 fees when appropriate.  Costs of service of notice 
 
                 and subpoenas shall be paid initially to the 
 
                 serving person or agency by the party utilizing 
 
                 the service.  Expenses and fees of witnesses or of 
 
                 obtaining doctors' or practitioners' reports 
 
                 initially shall be paid to the witnesses, doctors 
 
                 or practitioners by the party on whose behalf the 
 
                 witness is called or by whom the report is 
 
                 requested.  Witness fees shall be paid in 
 
                 accordance with Iowa Code section 622.74.  Proof 
 
                 of payment of any cost shall be filed with the 
 
                 industrial commissioner before it is taxed.  The 
 
                 party initially paying the expense shall be 
 
                 reimbursed by the party taxed with the cost.  If 
 
                 the expense is unpaid, it shall be paid by the 
 
                 party taxed with the cost.  Costs are to be 
 
                 assessed at the discretion of the deputy 
 
                 commissioner or industrial commissioner hearing 
 
                 the case unless otherwise required by the rules of 
 
                 civil procedure governing discovery.
 
            
 
                                     analysis
 
            
 
                 For years the practice of this agency has been for a 
 
            deputy to assess costs to one or more of the parties in 
 
            their decision.  By far the most common practice has been to 
 
            indicate who is to pay the costs without any itemization of 
 
            the costs.  This has been the practice because: (1) in the 
 
            majority of cases the parties do not have any real question 
 
            or objection to the costs; and (2) many of the costs would 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            not be available at the time of hearing.  The parties to an 
 
            action are usually aware of the costs because they know who 
 
            has testified or been deposed and are aware of the length of 
 
            depositions and hearing.  The parties are aware of rule 
 
            343-4.33 and can usually determine what cost can and what 
 
            cost cannot be recovered.
 
            
 
                 Furthermore, a case being appealed to the commissioner 
 
            may have an effect on who might end up paying the costs in a 
 
            proceeding.
 
            
 
                 Clearly, the deputy retains jurisdiction to make a 
 
            determination on what those costs include or exclude if some 
 
            question regarding particular charges arises at a later 
 
            time.  If such jurisdiction was not retained such questions 
 
            could never be determined if the parties were unable to 
 
            resolve the questions themselves.  This is especially true 
 
            since the conflict or question regarding such a cost would 
 
            not arise until after the decision became final.
 
            
 
                 Claimant argues that he is unduly prejudiced if the 
 
            defendants can later prove up costs.  The undersigned finds 
 
            claimant's argument to be without merit because he was aware 
 
            by the deputies original decision that he was ordered to pay 
 
            costs.
 
            
 
                 Defendants have failed to file any proof of payment as 
 
            required by rule 343-4.33.
 
            
 
                 WHEREFORE, the ruling on defendants' application to 
 
            reconsider is reversed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That this matter is remanded to the deputy to allow 
 
            defendants to file proof of payment or anything else they 
 
            desire regarding the costs of this action.  Claimant will be 
 
            allowed to file a response thereto and the deputy can 
 
            redetermine what costs will be allowed.
 
            
 
                 Signed and filed this ____ day of March, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas Henderson
 
            Attorney at Law
 
            1300 First Interstate Bank Bldg.
 
            Des Moines, Iow 50309
 
            
 
            Mr. E. J. Kelly
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          DE ANN TULLY,.
 
          
 
               Claimant,
 
          
 
          VS.                                  File No.798510
 
          
 
          BACHMAN SHEET METAL WORKS, INC       A R B I T R A T I 0 N
 
          
 
               Employer,                       D E C I S I 0 N
 
          
 
          and
 
          
 
          IOWA CONTRACTORS WORKERS'
 
          COMPENSATION GROUP,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by De Ann Tully 
 
         against her former employer, Bachman Sheet Metal Works, and its 
 
         insurance carrier, Iowa Contractors Workers' Compensation Group.  
 
         The case was heard and fully submitted at Des Moines, Iowa on 
 
         January 9, 1989.  The record in the proceeding consists of 
 
         testimony from De Ann Tully, claimant's exhibits 1 through 11, 
 
         and defendants' exhibits A through F.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks permanent partial disability compensation for 
 
         her left ankle in the amount of ten percent.  The employer 
 
         contends that the disability, is only five percent.
 
         
 
                                REVIEW OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.   
 
         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.
 
         
 
              De Ann Tully tripped and injured her.left ankle on June 18, 
 
         1985 while performing services for her employer.  She sought 
 
         medical treatment.  At the time she was released by Joshua 
 
         Kimmelman, D.O., an orthopaedic surgeon, her employer had gone 
 
         .out of business.  Dr. Kimmelman  reported that claimant had no 
 
         permanent impairment, although he also indicated that the reason 
 
         for that assessment was that she had not returned for
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         TULLY V. BACHMAN SHEET METAL WORKS, INC.
 
         Page 2
 
         
 
         
 
         further treatment and presumably was doing well (exhibit 3).  
 
         Claimant's testimony was to the effect that she was not doing 
 
         well.  She described a long period of slow recovery.  Claimant 
 
         complained that she still experiences problems with the ankle 
 
         which occur with activities such as running and walking on uneven 
 
         ground.  Claimant stated that the problems consist of weakness, 
 
         frequent sprains, swelling, pain and discomfort.
 
         
 
              Claimant had obtained treatment from Richard G. Kenney, 
 
         D.O., a rheumatologist, who in turn referred her to Joel D. Boyd, 
 
         D.O., for an evaluation.  Dr. Boyd stated that claimant had 
 
         chronic ligamentous instability of the left ankle.  He felt that 
 
         she had a permanent problem which was possibly correctable with 
 
         reconstructive surgery.  He rated a five percent disability 
 
         (exhibit 9).
 
         
 
              Claimant was also evaluated by Jerome G. Bashara, M.D. Dr. 
 
         Bashara also found that claimant had traumatic injury to the 
 
         lateral ligaments of her left ankle with mild residual loss of 
 
         motion and mild lateral instability.  He assigned a ten percent 
 
         permanent partial impairment rating related to the injury.  Dr. 
 
         Bashara also indicated that claimant should use an air splint 
 
         when she engages in vigorous activity and that reconstructive 
 
         surgery was recommended (exhibits 10 and 11).  Claimant has been 
 
         reluctant to undergo reconstructive surgery.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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).  Since the impairment is limited to 
 
         claimant's left leg, the disability is compensated under Code 
 
         section 85.34(2)(o).
 
         
 
              Dr. Kimmelman's rating is rejected since it assumes claimant 
 
         had no further problems.  The evaluation made by Dr. Bashara 
 
         would appear from his extensive report to have been more 
 
         comprehensive than the evaluation made by Dr. Boyd.  Drs.  
 
         Bashara and Boyd are qualified orthopaedic surgeons.  Dr. Boyd 
 
         presumably had information from Dr. Kenney who referred claimant 
 
         to him.  In this case, there is really no particular reason to 
 
         prefer the opinion of one physician to another.   It is therefore 
 
         determined that claimant has a seven and one-half permanent 
 
         partial disability of her left leg as a result of the June 18, 
 
         1985 injury.  Lawyer and Higgs, Iowa Workers' Compensation--Law 
 
         and Practice, section 13-4.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TULLY V. BACHMAN SHEET METAL WORKS, INC.
 
         Page 3
 
         
 
         
 
                                 FINDING OF FACT
 
         
 
              1. Claimant has a seven and one-half percent impairment of 
 
         her left leg which was proximately caused by the June 18, 1985 
 
         injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Claimant is entitled to recover 16.5 weeks of 
 
         compensation for permanent partial disability representing a 7 
 
         1/2 percent permanent partial disability of her left leg under 
 
         the provisions of Code section 85.34(2)(o).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant sixteen 
 
         point five (16.5) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred seventy-six 
 
         and 97/100 dollars ($376.97) per week payable commencing November 
 
         10, 1985.
 
         
 
              IT IS FURTHER ORDERED that all amounts of permanent partial 
 
         disability  are past due and shall be paid in a lump sum together 
 
         with interest at the rate of ten percent (10%) per annum computed 
 
         from the date each weekly payment came due until the date of 
 
         actual payment pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay-the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              IT IS FURTHER ORDERED that claimant's claim for additional 
 
         compensation under the fourth unnumbered paragraph of Iowa Code 
 
         section 86.13 shall be assigned for prehearing conference.
 
         
 
              Signed and filed this 16th day of August, 1989.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TULLY V. BACHMAN SHEET METAL WORKS, INC.
 
         Page 4
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Joseph M. Bauer
 
         Attorney at Law 
 
         309 Court Avenue, Suite 500
 
         Des Moines, Iowa 50309
 
         
 
         Mr. John A. Templer, Jr.
 
         Ms. Ann M. Ver Heul
 
         Attorneys at Law
 
         3737 Woodland, Suite 437
 
         West Des Moines, Iowa 50265
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5 1803
 
                                         Filed August 16, 1989
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DE ANN TULLY,
 
          
 
               Claimant,
 
          
 
          VS.                                  File No. 798510
 
          
 
          BACHMAN SHEET METAL WORKS,.INC.                   A R B I T R A T I 0 N
 
          
 
               Employer,                       D E C I S I 0 N
 
          
 
          and
 
          
 
          IOWA CONTRACTORS WORKERS'
 
          COMPENSATION GROUP,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         51803
 
         
 
              The impairment ratings from two orthopaedic surgeons were 
 
         averaged to provide the permanent partial disability award in a 
 
         scheduled member case where permanent partial disability was the 
 
         only issue.