BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOROTHY HUTCHISON,
 
         
 
              Claimant,
 
                                                  File No. 820225
 
         vs.
 
                                                     A P P E A L
 
         LITTLE GIANT CRANE AND SHOVEL
 
         INC.,                                     D E C I S I O N
 
         
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     JUL 31 1989
 
         THE HARTFORD INSURANCE COMPANY,
 
                                                 INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits as a result of an alleged 
 
         injury on February 3, 1986.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits A through K and claimant's 
 
         exhibits I through K.  Both parties filed briefs on appeal. 
 
         Claimant filed a reply brief.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the following issue on appeal:  "Whether it 
 
         was error for the Deputy Commissioner to award only 35 percent 
 
         industrial disability."
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.  Although the analysis of the evidence is adopted, a 
 
         clarification is appropriate.  The deputy in his analysis and 
 
         findings of fact referred to a loss of income and a wage loss.  A 
 
         loss.of earnings and a loss of earning capacity are different.  A 
 
         loss of earnings occurs at a particular point in time and is 
 
         considered in determining a loss of earnings capacity.  The loss 
 
         of earning capacity or industrial disability refers to claimant's 
 
         inability to produce earnings in the future.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained an injury on February 3, 1986, while 
 
         employed by employer when she slipped on a metal step and injured 
 
         her neck.
 
         
 
              2.  Claimant was 40 years old on the date of the injury.
 
              
 
              3.  Stuart R. Winston, M.D., performed an interbody cervical 
 
         fusion of C-5-6 on April 11, 1986.
 
              
 
              4.  Claimant still experiences numbness in the right hand 
 
         and fingers, drops objects, has reduced strength, has a slightly 
 
         limited range of motion and that continuous work with the right 
 
         arm causes pain in her neck and causes headaches.
 
         
 
              5.  Dr. Winston, the treating physician, determined that 
 
         claimant sustained a permanent functional impairment of eight 
 
         percent of the body as a whole; that she was unable to continue 
 
         to perform her old job with employer; and that he recommended 
 
         that she be retrained to perform sedentary work in the future.
 
         
 
              6.  David J. Boarini, M.D., an evaluating physician, 
 
         assessed a six to eight percent permanent impairment of the body 
 
         as a whole; that prolonged heavy labor might be too uncomfortable 
 
         to be reasonable; that claimant might find that she could not 
 
         tolerate continuous turning of the head and heavy work; and that 
 
         claimant's complaints were not inconsistent with her injury and 
 
         surgery.
 
         
 
              7.  Claimant tried to perform her former job, but testified 
 
         that she was unable to do it.
 
              
 
              8.  Claimant was earning $11.39 per hour at the time of the 
 
         injury and that if she were still performing this job she would 
 
         be earning $12.06 per hour.
 
         
 
              9.  Claimant is currently earning $3.35 per hour and has 
 
         worked on a part-time basis as much as 39 hours per week.
 
         
 
              10.  Kathryn Bennett testified that claimant could expect to 
 
         earn approximately $4 to $5 per hour after she had been employed 
 
         for awhile.
 
         
 
              11.  Claimant has sustained a wage loss in excess of 50 
 
         percent of her former earnings.
 
         
 
              12.  Claimant has certain disincentives to work since the 
 
         injury occurred on February 3, 1986:  (1) the adoption of an 
 
         infant, (2) she has financial support from her husband of 19 
 
         years, and (3) her arm hurts.
 
         
 
              13.  Claimant has sustained an industrial disability of 35 
 
         percent of the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              14.  The 32 hour week in claimant's last 13 weeks of 
 
         employment prior to the injury was not representative of 
 
         claimant's gross weekly earnings.
 
         
 
              15.  The proper rate of compensation is $276.45 per week.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has sustained an industrial disability of 35 
 
         percent of the body as a whole and is entitled to 175 weeks of 
 
         permanent partial disability benefits.
 
         
 
              The proper rate of compensation is $276.45.
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                      ORDER
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant one hundred seventy-five 
 
         (175) weeks of permanent partial disability benefits at the rate 
 
         of two hundred seventy-six and 45/100 dollars ($276.45) per week 
 
         in the total amount of forty-eight thousand three hundred 
 
         seventy-eight and 75/100 ($48,378.75) commencing on October 6, 
 
         1986.
 
         
 
              That defendants are entitled to a credit for all permanent 
 
         partial disability benefits paid to claimant prior to hearing and 
 
         after the hearing.
 
         
 
              That defendants are liable for the difference in benefits 
 
         between two hundred seventy-three and 35/100 dollars ($273.35) 
 
         and two hundred seventy-six and 45/100 dollars ($276.45) per week 
 
         on all of the prior payments of healing period benefits and 
 
         permanent partial disability benefits previously made to 
 
         claimant:  (1) defendants paid healing period benefits, and (2) 
 
         defendants had agreed to pay claimant 100 weeks of permanent 
 
         partial disability prior to hearing at the rate of two hundred 
 
         seventy-three and 35/00 dollars ($273.35) per week and were in 
 
         the process of making these payments at the time of the hearing.
 
         
 
              That all accrued amounts are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That claimant pay the costs of this appeal including the 
 
         costs of transcription of the arbitration hearing.
 
         
 
              That defendants pay all other costs of this 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 Services Rule 
 
         343-3.1.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Signed and filed this 31st day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James R. Lawyer
 
         Mr. Tom L. Drew
 
         Attorneys at Law
 
         West Towers Office
 
         1200 35th St. Ste. 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, Ste. 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51800 - 51803
 
                                            Filed July 31, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOROTHY HUTCHISON,
 
         
 
              Claimant,
 
                                                      File No. 820225
 
         vs.
 
         
 
         LITTLE GIANT CRANE AND SHOVEL                  A P P E A L
 
         INC.,
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51800, 51803
 
         
 
              Deputy's determination that claimant was 35 percent 
 
         industrially disabled was affirmed on appeal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOROTHY HUTCHISON,
 
         
 
              Claimant,
 
         
 
         vs.                                     File No. 820225
 
         
 
         LITTLE GIANT CRANE AND SHOVEL,       A R B I T R A T I O N
 
         INC.,
 
                                                 D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Dorothy 
 
         Hutchison, claimant, against Little Giant Crane and Shovel, Inc., 
 
         employer, and Hartford Insurance Company, insurance carrier, 
 
         defendants, for benefits as a result of an injury which occurred 
 
         on February 3, 1986.  A hearing was held in Des Moines, Iowa, on 
 
         October 1, 1987, and the case was fully submitted at the close of 
 
         the hearing.  The record consists of the testimony of Dorothy 
 
         Hutchison, claimant, Earl Dunsbergen, secretary-treasurer and 
 
         workers' compensation representative, Pete Fontana, assistant 
 
         plant superintendent, Kathryn Bennett, vocational rehabilitation 
 
         consultant, Joint Exhibits A through K and Claimant's Exhibits 
 
         1-4.  Both attorneys submitted excellent briefs.  Defendants 
 
         provided a transcript for the industrial commissioner's file.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That claimant sustained an injury on.February 3, 1986, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to temporary disability benefits 
 
         from March 3, 1986 through October 5, 1986.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE   2
 
         
 
         
 
              That the commencement date for permanent partial 
 
         disability benefits, in the event such benefits are awarded, is 
 
         stipulated to be October 6, 1986.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid.
 
         
 
              That defendants seek no credit for benefits paid under an 
 
         employee nonoccupational group health plan.
 
         
 
              That defendants are entitled to a credit for 31 weeks of 
 
         workers' compensation at the rate of $273.35 per week prior to 
 
         hearing and permanent partial disability benefits based upon a 
 
         20 percent industrial disability on which payments are being 
 
         made at the time of the hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits, and if so, the extent of such benefits.
 
         
 
              A determination of the proper rate of weekly compensation.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant was 40 years old on the date of the injury and 42 
 
         years old at the time of the hearing.  Claimant has been married 
 
         19 years.  Her husband is a truck driver.  Claimant adopted a 
 
         newborn baby after the injury.
 
         
 
              Claimant graduated from high school in 1963 with above 
 
         average grades and attended Northwest Missouri State College for 
 
         approximately six months.  In 1970, she completed the beautician 
 
         course at the Americana Beauty School.  Claimant also attended 
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE   3
 
         
 
         
 
         and completed a semi truck and trailer driving school in 1971.  
 
         She drove trucks over the road with her husband for some period 
 
         of time after that.
 
         
 
              Past employments include waitress, cook, scoring machine 
 
         operator in a paper box factory, punch press operator in a gasket 
 
         factory, beautician, shoe warehouse worker, cashier, semi tractor 
 
         and trailer team driver with her husband, a clerk and later, 
 
         manager at a department store.  Except for her employment with 
 
         employer, and the truck driving employment, claimant has always 
 
         been employed at minimum wage types of jobs.
 
         
 
              Claimant started to work for employer in 1977.  She worked 
 
         there for approximately nine years until this injury, which 
 
         occurred on February 3, 1986.  Her primary job for employer was 
 
         final assembly, when the crane cab is mounted onto the truck (Tr. 
 
         p. 24).  More specifically, claimant cut and glued in the 
 
         insulation in the crane cabs.  She also installed windows and 
 
         doors in the cabs.  Claimant testified that she was required to 
 
         lift up to 70 pounds and that she was required frequently to work 
 
         with her arms overhead (Tr. p. 25).  In particular, she applied 
 
         glue to the ceiling of the cab, got up on her knees on the seat, 
 
         and leaned backward over the steering wheel in order to carefully 
 
         fit in and install the ceiling foam (Tr. p. 26).  She stated that 
 
         she frequently mounted and dismounted the cabs, which are 
 
         approximately five feet off the ground, by way of exterior metal 
 
         steps (Ex. p. 27).  Claimant testified that she was earning 
 
         $11.39 per hour at the time of the injury on February 3, 1986 
 
         (Tr. p. 27; Ex. 2).  Claimant would have earned $11.64 per hour 
 
         on June 9, 1986, and $11.73 per hour on December 9, 1986, if she 
 
         had been working for employer on these dates (Ex. 4).  On July 9, 
 
         1987, her hourly rate would have become $12.08 per hour (Tr. p. 
 
         87).  Claimant added that she also received medical benefits at 
 
         group rates partially paid for by the company, retirement plan 
 
         benefits and profit sharing benefits in addition to her wages 
 
         (Tr. p. 29).
 
         
 
              On February 3, 1986, while descending the metal steps of a 
 
         cab of a crane, her foot slipped off the edge of the step and she 
 
         dropped about eight inches to the next step.  Her head was 
 
         turned, looking back into the cab for a tool, when she slipped.  
 
         Something popped and cracked in her neck.  This occurred around 
 
         10:30 a.m. in the morning and by noon she had a headache which 
 
         she described as unbelievable (Tr. pp. 29 & 30).
 
         
 
              Home treatment for her injury was not successful.  Claimant 
 
         then saw Donald M. Patrick, D.C., on February 13, 1986 (Tr. 30). 
 
          She then consulted with Ben F. Gaumer, D.O., on March 3, 1986.  
 
         Dr. Gaumer referred claimant to Stuart Winston, M.D., a 
 
         neurosurgeon, on March 11, 1986 (Tr. p. 31, Ex. E).  Dr. Winston 
 
         tried physical therapy and medications without success.  Dr. 
 
         Winston ordered x-rays, CT scans, an EMG, and a myelogram (Tr. p. 
 
         31; Ex. C; Ex. D, pp. 8-11).
 
         
 
              Dr. Winston performed an anterior interbody cervical fusion 
 
         on April 11, 1986 (Ex. C, p. 25).  Dr. Winston recorded that 
 
         claimant had a remote injury to her neck eight years earlier.  He 
 
         also noted that claimant worked with 86 men assembling cranes 
 
         (Ex. D, p. 8).
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE   4
 
         
 
         
 
         
 
              On June 16, 1988, Dr. Winston said that claimant had been 
 
         weaned from the neck collar and had begun isometric exercises.  
 
         He added that she is involved in a vigorous occupation and he 
 
         needed to rehabilitate her further before consideration of her 
 
         return to work was entertained (Ex. D, p. 6).
 
         
 
              On July 14, 1986, Dr. Winston recorded that her hand will 
 
         fall asleep and that she had mild extensive weakness of the 
 
         wrist.  At this point, the doctor commented again that her 
 
         occupation of assembling cranes required her to be strong and 
 
         confident of the strength in her upper extremities before 
 
         returning to work.  Dr. Winston sent claimant to see William D. 
 
         deGravelles, Jr., M.D., chief of physical medicine and 
 
         rehabilitation at Iowa Methodist Medical Center (Ex. D, pp. 4 & 
 
         5).  Dr. deGravelles treated claimant from July 30, 1986 until 
 
         September 16, 1986 (Ex. B).
 
         
 
              Dr. Winston intended to release claimant to return to work 
 
         on September 22, 1986, on light duty with a 25 pound weight 
 
         restriction (Tr. pp. 32-34; Ex. D, p. 2).  However, employer and 
 
         insurance carrier would not tolerate anyone with a restriction 
 
         like that to work in heavy industry (Tr. p. 33).  Claimant 
 
         reported this to Dr. Winston and he gave claimant a full release 
 
         to return to work on October 6, 1986 (Ex. J).  Dr. Winston's 
 
         comments on September 22, 1986, were as follows:
 
         
 
              I have explained to her at this point, five months 
 
              postoperative, that either she is going to be able to 
 
              deal with her duties as formerly or she will not and 
 
              therein lies [sic] any partial permanent disability 
 
              along with the continuing numbness and distribution of 
 
              the nerves.
 
         
 
         (Ex. D, p. 2)
 
         
 
              Claimant testified that she is right handed.  She said that 
 
         after the surgery, if she did any lifting of a repetitive nature, 
 
         her hand would go numb, she would drop things, she would get 
 
         cramping in her neck and get a headache.
 
         
 
              Claimant testified that after she returned to work she could 
 
         not hold onto the electric scissors they gave her to use because 
 
         of the vibration so she used regular scissors instead.  Claimant 
 
         testified that on her first day back to work, she left early 
 
         because after installing a headliner in a cab, her head hurt so 
 
         bad she could barely open her eyes.  She worked all day the 
 
         following day but did not get all of the work done.  
 
         Consequently, she was not able to make it through the third day 
 
         (Tr. pp. 34-36).  Claimant then returned to Dr. Winston who made 
 
         the following report to the insurance company on October 20, 
 
         1986.
 
         
 
              We saw Dorothy Hutchison in the office on 10/20/86 and 
 
              she is unable to work, at least in the form of capacity 
 
              that she had even with a weight restriction.  She 
 
              develops headaches, aching in the arms and neck area 
 
              and frankly I feel that she should probably be 
 
              retrained to do something more sedentary that will not 
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE   5
 
         
 
         
 
              involve heavy labor.
 
         
 
              I would rate her at 8% permanent partial disability.
 
         
 
         (Ex. D, p. 1)
 
         
 
              In a letter to claimant's counsel on April 20, 1987, Dr. 
 
         Winston stated that the injury of February 3, 1986, was the cause 
 
         of her disability (Ex. D, p. 21).
 
         
 
              Claimant said that she cannot garden, take down her drapes, 
 
         carry laundry baskets or groceries, clean the tub or run the 
 
         carpet scrubber (Tr. pp. 38-42).  Claimant testified that she was 
 
         not able to perform her old job with employer (Tr. pp. 42, 66 & 
 
         67).
 
         
 
              Claimant testified that she sought help from the State of 
 
         Iowa Department of Vocational Rehabilitation on her own volition 
 
         (Tr. p. 43).  Claimant gave a list of 62 places where she has 
 
         sought employment from November 5, 1986 to June 23, 1987 (Ex. 3).  
 
         Claimant stated that many prospective employers asked her if she 
 
         was ever injured on the job or whether she had ever received 
 
         workers' compensation benefits (Tr. p. 44).  Eventually, claimant 
 
         got two part-time jobs on the same day--one at a department store 
 
         and the other at a greenhouse.  She worked at the department 
 
         store for only a short time but she was still working at the 
 
         greenhouse at the time of the hearing.  Even though it is a 
 
         part-time job, she has worked as many as 39 hours per week.  Her 
 
         rate of pay is  $3.35 per hour.  She obtained this job through 
 
         the Joint Training Partnership Act (JTPA).  She cares for plants 
 
         and waits on customers at the greenhouse.  This job does not have 
 
         any employee benefits other than an employee discount.  Claimant 
 
         anticipates that this job will become a full-time job (Tr. pp. 
 
         46-50).
 
         
 
              Claimant admitted that she hurt her shoulder in 1979, was 
 
         off work for ten months and was paid workers' compensation 
 
         benefits (Tr. pp. 51 & 52).
 
         
 
              Claimant acknowledged that she had one 32 hour week, in 
 
         January of 1986, in the 13 week period used to calculate her 
 
         rate.  She could not recall why she missed this day.  The plant 
 
         was open and operating.  Claimant speculated that since it was 
 
         January it might have been due to the weather.
 
         
 
              Claimant agreed with defendants' counsel that in order to 
 
         collect her accumulated profit sharing, it was necessary for her 
 
         to quit her job.  Claimant conceded that she could do sedentary 
 
         work such as retail clerk, receptionist, dispatcher, cashier and 
 
         short-haul driving (Tr. pp. 67-70).  She stated that her last 
 
         medical treatment for this injury was with Dr. Winston in October 
 
         of 1986 (Tr. p. 78).  Claimant testified that her health and 
 
         bodily functions are good except for the right shoulder (Tr. p. 
 
         74).
 
         
 
              Earl Dunsbergen, secretary-treasurer and workers' 
 
         compensation manager, testified that the company does not accept 
 
         employees back to work with partial releases from a doctor.  When 
 
         claimant was notified of this fact, claimant then returned to 
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE   6
 
         
 
         
 
         work with a full release (Tr. p. 81).  Dunsbergen said that 
 
         claimant told him that she could no longer handle the work at 
 
         employer and that she wanted to take her profit sharing (Tr. p. 
 
         82).  The witness acknowledged that claimant missed a day of work 
 
         on January 7, 1986, but he did not know why (Tr. pp. 83 & 84).  
 
         Dunsbergen admitted that he said in a deposition that the job 
 
         entailed lifting 70 pounds, but he qualified this statement at 
 
         the hearing and stated that he did know whether that was correct 
 
         or not at the time he made that statement (Tr. p. 86).  He stated 
 
         that claimant will not receive any money from the pension plan 
 
         because she did not complete ten years of employment with the 
 
         company and that she also lost some of her profit sharing (Tr. p. 
 
         89).
 
         
 
              Pete Fontana, assistant plant superintendent, testified that 
 
         95 percent of claimant's work was insulating and glassing cabs.  
 
         The cabs are approximately 30 inches wide, 70 inches long and 70 
 
         inches high.  The cabs have seven windows which she installed 
 
         (Tr. pp. 94-97).  Fontana testified that the heaviest weight that 
 
         claimant would lift in doing her job would be lifting a window, 
 
         which weighed approximately 15 to 20 pounds.  He testified that 
 
         there was nothing that would weigh either 50 pounds or 70 pounds 
 
         (Tr. pp. 98-100).  He conceded that claimant did work overhead in 
 
         order to install insulation.  He further testified that there are 
 
         three women and about 50 men who work.in production (Tr. p. 
 
         103).
 
         
 
              Kathryn Bennett, a vocational rehabilitation consultant, 
 
         testified that she interviewed and tested claimant.  She studied 
 
         claimant's medical history and her vocational rehabilitation 
 
         history taken by the state of Iowa.  Bennett's tests revealed 
 
         that claimant has high average intelligence.  She is bright.  She 
 
         is capable of pursuing additional training.  However, claimant 
 
         was more interested in going to work than going to school (Tr. 
 
         pp. 112-115).  Bennett stated that when you start as a new 
 
         employee you naturally make less money but can make more money 
 
         after you have been employed by the same employer for a period of 
 
         time (Tr. p. 123).  Bennett said that the key to finding 
 
         employment is motivation on the part of the injured worker.  The 
 
         witness did not know whether the jobs which she thought claimant 
 
         could do were actually available or not in the employment market 
 
         in this area (Tr. pp. 126 & 127).  The physical labor jobs are 
 
         the highest paying jobs (Tr. p. 129).  Bennett related that 
 
         claimant told her that she now has to do "women's work" because 
 
         she can no longer do physical labor work (Tr. p. 129).  Bennett 
 
         testified that claimant was highly motivated to seek.and find 
 
         work (Tr. p. 133).  The witness testified that the most claimant 
 
         could hope to make in starting a new job would be approximately 
 
         $4 to $5 per hour (Tr. p. 134).
 
         
 
              David Boarini, M.D., a neurosurgeon, examined claimant for 
 
         defendants on June 4, 1987.  He drafted a report on June 16, 
 
         1987.  She reported a good recovery to him, except for some 
 
         numbness, and that she does feel some pain when she tries to do 
 
         heavy labor.  She had near normal range of neck motion.  The 
 
         strength in her upper extremities was near normal except for some 
 
         slight weakness in the triceps on the right.  This was equivocal.  
 
         Claimant had some hypesthesia in the C-6 distribution on the 
 
         right.  Dr. Boarini said that six to eight percent would be a 
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE   7
 
         
 
         
 
         reasonable permanent impairment rating based on an interbody 
 
         fusion and some residual numbness.  He stated that claimant was 
 
         capable of gainful employment.  He concluded by saying, "I would 
 
         really place no specific work restrictions on her although it may 
 
         be true that prolonged heavy labor might be too uncomfortable to 
 
         be reasonable" (Ex. A).
 
         
 
              Dr. Boarini gave a deposition on September 28, 1987.  He 
 
         testified that the presence of osteophytes, chronic bone spurs, 
 
         cervical spondylosis, osteoarthritis and wear and tear arthritis 
 
         predated the injury of February 3, 1986 (E. K, pp. 10 & 11).  
 
         Nevertheless, the injury of February 3, 1986, which was minor, 
 
         caused her to become symptomatic (Ex. K, p. 12).  Dr. Boarini 
 
         said that he would place no restrictions on claimant but there 
 
         are certain tasks she might find that she could not tolerate such 
 
         as any sort of a job that requires continuous turning of the head 
 
         to extreme motions and heavy work (Ex. K, p. 14). Boarini 
 
         admitted that claimant's complaints were not inconsistent with 
 
         her injury and surgery (Ex. K, pp. 18 & 19).  He stated that he 
 
         differed from Dr. Winston in that he preferred to impose no 
 
         restrictions, but rather to let the patient go ahead and see what 
 
         they can and can not do (Ex. K, p. 21).  Then if the patient is 
 
         honest you find out what they can do after they have tried to 
 
         perform work (Ex. K, pp. 21 & 22).  Dr. Boarini then testified as 
 
         follows:
 
         
 
              A.  If she were my patient, I would tell her to go 
 
              ahead and try that work.  It may turn out she can't do 
 
     
 
         
 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE   8
 
         
 
         
 
              it, in which case I would not find that inconsistent 
 
              with her condition.
 
         
 
              Q.  All right.  You'd have to rely on her?
 
         
 
              A.  Yes. I would release her to return to that work, 
 
              but, in fact, it wouldn't be terribly surprising if she 
 
              was uncomfortable doing it.
 
         
 
         (Ex. K, pp. 23 & 24)
 
         
 
              Dr. Boarini admitted that he did not measure claimantOs 
 
         movements with a goniometer (Tr. p. 22).
 
         
 
              Claimant's.gross earnings as per her W-2 forms were as 
 
         follows:
 
         
 
              1981        $19,552.32
 
              1982         21,402.97
 
              1983         20,894.39
 
              1984         21,486.34
 
              1985         23,225.68
 
              1986          5,066.46
 
         
 
         (Ex. 1)
 
         
 
              Claimant's wage statement for the 13 weeks prior to the 
 
         injury show that claimant usually worked a 40 hour week.  Eight 
 
         of the 13 weeks were 40 hour weeks.  The other five weeks she 
 
         worked the following number of hours (1) 39.76; (2) 32; (3) 
 
         39.96; (4) 38.41; (5) 37.54.  Claimant's rate of pay was $11.39 
 
         per hour.  The number of hours totaled 507.67 hours for the 
 
         thirteen week period (Ex. 2).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              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, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant has proven a substantial amount of industrial 
 
         disability.  It is clear that the primary treating neurosurgeon 
 
         was apprehensive during the course of her recovery as to whether 
 
         claimant would be able to perform her former job of installing 
 
         insulation and windows into crane cabs.
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE   9
 
         
 
         
 
         
 
              On April 11, 1986, Dr. Winston commented that she works with 
 
         86 men assembling cranes (Ex. D, p. 8). on June 16, 1986, he 
 
         remarked that her occupation is quite vigorous and he needed to 
 
         further rehabilitate her before he could consider a return to 
 
         work (Ex. D,.p. 6).  On June 16, 1986, he also told the insurance 
 
         carrier that in order to assume her occupation of assembling 
 
         cranes, she needed to be stronger and more confident and he sent 
 
         her to Dr. deGravelles for rehabilitation therapy (Ex. D, pp. 5 & 
 
         6).  On September 22, 1986, Dr. Winston thought that a 25 pound 
 
         weight restriction would be appropriate.  He fatalistically 
 
         stated that she is either going to be able to do this job or that 
 
         she will not be able to do this job.  The acid test apparently 
 
         was to be whatever claimant found that she was able to do (Ex. D, 
 
         p. 2).
 
         
 
              Claimant testified that she tried to work and that she was 
 
         unable to do so.  She testified that she only worked one-half of 
 
         a day and found that she was unable to continue to do the job 
 
         that she had done for almost nine years.  She was not able to 
 
         hold onto the electric scissors because of the vibration.  She 
 
         was able to use the regular scissors.  Claimant testified that 
 
         after working one-half of a day, that her head ached so bad that 
 
         she could not open her eyes and that she had to go home early.  
 
         She related that she worked all day the following day but that 
 
         she did not meet all of her work requirements for that day.  
 
         Continuous work with her right arm caused her right hand to go 
 
         numb, started cramps in her neck and gave her a headache.  She 
 
         testified that she worked a portion of the third day but was not 
 
         able to finish it (Tr. pp. 34-36).
 
         
 
              Dr. Winston wrote on October 20, 1986, that claimant was not 
 
         able to work.  He said that she developed headaches and aching in 
 
         the arms and neck.  Dr. Winston concluded by saying, "...frankly 
 
         I feel that she should probably be retrained to do something more 
 
         sedentary that will not involve heavy labor" (Ex. D, p. 1).
 
         
 
              Dr. Boarini, defendants' evaluator, did not believe in 
 
         issuing a 25 pound weight restriction prior to attempting to 
 
         work.  He felt that claimant should simply go and try and see 
 
         what she could do without the preconceived idea that she could 
 
         not lift over 25 pounds.  In any event, Fontana, the plant 
 
         superintendent, testified that claimant never did lift anything 
 
         weighing more than 20 pounds at any time in the performance of 
 
         her job.  Also, claimant did just as Dr. Boarini recommended.  
 
         She also tried to work without any restrictions and found that 
 
         she was unable to do it.
 
         
 
              Dr. Boarini granted that there are certain tasks that 
 
         claimant might find that she was not able to do such as 
 
         continuous turning of her head to extreme motions and heavy work 
 
         (Ex. K, p. 14).  Claimant herself described that she put her 
 
         knees on the seat and leaned backward over the steering wheel in 
 
         order to fit in the foam lining on the roof of the cab (Tr. pp. 
 
         26 & 35).  Dr. Boarini agreed that claimant's complaints were not 
 
         inconsistent with her injury and surgery (Ex. K, pp. 18 & 19).  
 
         He also agreed that if a patient was honest after trying to do 
 
         the job then you can tell what he can or cannot do (Tr. pp. 21 & 
 
         22).  Dr. Winston believed that she could not perform her former 
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE  10
 
         
 
         
 
         job and said so on October 20, 1986 (Ex. D, p. 1).  He had 
 
         indicated for some time before that, that it was very 
 
         questionable whether she could do her old job during the progress 
 
         of her recovery.  Dr. Boarini is not in disagreement.  He said 
 
         that the kind of work that claimant does could cause her 
 
         discomfort and that her complaints were not inconsistent with her 
 
         injury and surgery.
 
         
 
              Claimant appears to be honest.  She gave an honest 
 
         impression at the hearing.  None of the other witnesses accused 
 
         claimant of being dishonest.  Dr. Winston, Dr. Boarini, Kathryn 
 
         Bennett, Dunsbergen, and Fontana did not challenge, controvert, 
 
         contradict or question claimant's testimony that she was unable 
 
         to perform her old job.  No one testified that claimant could do 
 
         this work.  Claimant gave up a job that she had been able to 
 
         perform for the previous nine years.  It paid $11.39 per hour.  
 
         Claimant totally forfeited all of her rights to the pension plan 
 
         which had been accumulating benefits for nine years and there was 
 
         only approximately one year from being fully vested.  The weight 
 
         of the evidence is that claimant was not able to perform her 
 
         former job of insulating and glassing crane cabs.  Dr. Winston 
 
         suspected this during the healing period.  Dr. Boarini indicated 
 
         that it was not unreasonable to accept what she stated.  It does 
 
         not appear to be in her best interest to quit her job if she had 
 
         been able to do it.  Therefore, heavy production line work of a 
 
         strenuous physical nature is foreclosed to claimant.  She is now 
 
         limited to sedentary work.  Michael v. Harrison Co., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         219 (1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
         Industrial Commissioner Report 282 (1981).
 
         
 
              Claimant was 40 years old at the time of the injury and 42 
 
         years old at the time of the hearing.  She is, therefore, in the 
 
         middle part of her working career.  Her loss of future earnings 
 
         from employment due to her disability is more serious than it 
 
         would be in the case of a younger or older individual.  Becke v. 
 
         Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 34 (1979); Walton v. B & H Tank Corp., II 
 
         Iowa Industrial Commissioner Report 426 (1981).
 
         
 
              At the same time, claimant is young enough to be retrained. 
 
          The feasibility of retraining is one of the considerations 
 
         involved in determining industrial disability.  Conrad v. 
 
         Marquette School, Inc., IV Iowa Industrial Commissioner Report 
 
         74, 78 (1984).
 
         
 
              Claimant is bright.  She has a number of prior achievements 
 
         such as completing beauty school and becoming a licensed 
 
         beautician; completing semi truck and trailer driving school and 
 
         working as a team driver in over-the-road trucking; and 
 
         completing six months of college.  Claimant is highly 
 
         retrainable, but prefers to work rather than to be retrained.  
 
         Claimant has managerial experience, clerk experience, and cook 
 
         and waitress experience.  She was earning $11.39 per hour at the 
 
         time of the injury.  If she would have continued with employer 
 
         she would be earning $12.06 per hour.  Instead, claimant now is 
 
         earning $3.35 per hour.  Bennett said that claimant could expect 
 
         to earn $4 or $5 dollars per hour in time.  Based on any of these 
 
         figures claimant has suffered a loss of income greater than 50 
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE  11
 
         
 
         
 
         percent.
 
         
 
              At the same time, there have been some disincentives for 
 
         claimant to want to work.  First, her right hand and arm are 
 
         impaired, they get numb, ache and she suffers from neck aches and 
 
         headaches.  Second, claimant adopted a newborn child after the 
 
         injury some time in early 1987, which was only nine months old at 
 
         the time of the hearing, which she states has made her very happy 
 
         (Tr. p. 73).  It stands to reason that her interest in her newly 
 
         adopted child would conflict with the desire for full-time 
 
         employment and that claimant would like to spend time with the 
 
         child which obviously also needs her care since it is only an 
 
         infant.  Third, claimant's husband of 19 years works as a truck 
 
         driver two days a week and obviously provides a measure of 
 
         support for the necessities of life irrespective of whether 
 
         claimant works or not.
 
         
 
              Based on the foregoing considerations and all of the factors 
 
         that are used to determine industrial disability, it is 
 
         determined that claimant has sustained an industrial disability 
 
         of 35 percent of the body as a whole.
 
         
 
              The next issue concerns the proper rate of compensation.  
 
         The first paragraph of Iowa Code section 85.36 provides as 
 
         follows:
 
         
 
                 The basis of compensation shall be the weekly 
 
              earnings of the injured employee at the time of the 
 
              injury.  Weekly earnings means gross salary, wages, or 
 
              earnings of an employee to which such employee would 
 
              have been entitled had the employee worked the 
 
              customary hours for the full pay period in which the 
 
              employee was injured, as regularly required by the 
 
              employee's employer for the work or employment for 
 
              which the employee was employed, computed or determined 
 
              as follows and then rounded to the nearest dollar.
 
         
 
              Paragraph six of Iowa Code section 85.36 states:
 
         
 
                 In the case of an employee who is paid on a daily, 
 
              or hourly basis, or by the output of the employee, the 
 
              weekly earnings shall be computed by dividing by 
 
              thirteen the earnings, not including overtime or 
 
              premium pay, of said employee earned in the employ of 
 
              the employer in the last completed period of thirteen 
 
              consecutive calendar weeks immediately preceding the 
 
              injury.
 
         
 
              The parties requested a determination on the single issue of 
 
         whether the one 32 hour week should be included in the 
 
         calculation for the proper rate or whether it should be 
 
         eliminated.  The parties agree that if the 32 hour week is to be 
 
         included in the calculation, then 13 weeks are to be used as 
 
         provided in paragraph six and, in that event, the proper rate of 
 
         compensation is $273.35 per week.
 
         
 
              The parties also agree that if the 32 hour week is not to be 
 
         used in the calculation then claimant's hours from the remaining 
 
         12 weeks are to be divided by 12 which results in an hourly rate 
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE  12
 
         
 
         
 
         of $276.45 per week (475.67 hours x $11.39 per hour = $5,417.88 
 
         divided by 12 = GAWW of $451.49). This results in a weekly rate 
 
         of $276.45 per week for a married person with 2 exemptions.
 
         
 
              Based on claimant's testimony and the data showing her 
 
         weekly hours in Exhibit 2, it is determined that it is not 
 
         representative for claimant to miss a whole day of work.  
 
         Claimant and others testified that the plant was open and 
 
         operating on that day.  Exhibit 2 shows that claimant has missed 
 
         a few hours of work in five of the 13 weeks, but normally came to 
 
         work and did not miss a whole day of work.  The statute states 
 
         that the weekly rate is to be based on the gross wage to which 
 
         claimant would have been entitled had she worked the customary 
 
         hours for a full pay period as regularly required by employer.  
 
         It appears that a customary week of full pay is apparently a 40 
 
         hour week.  A 32 hour week means that one day is missing.  One 
 
         day is 20 percent or 1/5 of a week.  A loss of this magnitude is 
 
         not representative of a normal or customary work week for this 
 
         employer or this employee.  It is determined that claimant's rate 
 
         of compensation is properly $276.45 per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on the foregoing evidence the following 
 
         findings of fact are made.
 
         
 
              That claimant sustained an injury on February 3, 1986, while 
 
         employed by employer when she slipped on a metal step and injured 
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE  13
 
         
 
         
 
         her neck.
 
         
 
              That Dr. Winston performed an interbody cervical fusion of 
 
         C-5-6 on April 11, 1986.
 
         
 
              That claimant still experiences numbness in the right hand 
 
         and fingers, drops objects, has reduced strength, has a slightly 
 
         limited range of motion and that continuous work with the right 
 
         arm causes pain in her neck and causes headaches.
 
         
 
              That Dr. Winston, the treating physician, determined that 
 
         claimant sustained a permanent functional impairment of eight 
 
         percent of the body as a whole; that she was unable to continue 
 
         to perform her old job with employer; and that he recommended 
 
         that she be retrained to perform sedentary work in the future.
 
         
 
              That Dr. Boarini, an evaluating physician, assessed a six to 
 
         eight percent permanent impairment of the body as a whole; that 
 
         prolonged heavy labor might be too uncomfortable to be 
 
         reasonable; that claimant might find that she could not tolerate 
 
         continuous turning of the head and heavy work; and that 
 
         claimant's complaints were not inconsistent with her injury and 
 
         surgery.
 
         
 
              That claimant tried to perform her former job, but testified 
 
         that she was unable to do it.
 
         
 
              That claimant gave the appearance of being credible and 
 
         honest.  Her testimony was not controverted.
 
         
 
              That claimant was earning $11.39 per hour at the time of the 
 
         injury and that if she were still performing this job she would 
 
         be earning $12.06 per hour.
 
         
 
              That claimant is currently earning $3.35 per hour and has 
 
         worked on a part-time basis as much as 39 hours per week.
 
         
 
              That Bennett testified that claimant could expect to earn 
 
         approximately $4 to $5 per hour after she had been employed for 
 
         awhile.
 
         
 
              That claimant has sustained a wage loss in excess of 50 
 
         percent of her former earnings.
 
         
 
              That claimant has certain disincentives to work since the 
 
         injury occurred on February 3, 1986: (1) the adoption of an 
 
         infant, (2) she has financial support from her husband of 19 
 
         years, and (3) her arm hurts.
 
         
 
              That claimant has sustained an industrial disability of 35 
 
         percent of the body as a whole.
 
         
 
              That the 32 hour week in claimant's last 13 weeks of 
 
         employment prior to the injury was not representative of 
 
         claimant's gross weekly earnings.
 
         
 
              That the proper rate of compensation is $276.45  per week.
 
         
 
                               
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE  14
 
         
 
 
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That claimant has sustained an industrial disability of 35 
 
         percent of the body as a whole and is entitled to 175 weeks of 
 
         permanent partial disability benefits.
 
         
 
              That the proper rate of compensation is $276.45.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred seventy-five 
 
         (175) weeks of permanent partial disability benefits at the rate 
 
         of two hundred seventy-six and 45/100 dollars ($276.45) per week 
 
         in the total amount of forty-eight thousand three hundred 
 
         seventy-eight and 75/100 dollars ($48,378.75) commencing on 
 
         October 6, 1986.
 
         
 
              That defendants are entitled to a credit for all permanent 
 
         partial disability benefits paid to claimant prior to hearing and 
 
         after the hearing.
 
         
 
              That defendants are liable for the difference in benefits 
 
         between two hundred seventy-three and 35/100 dollars ($273.35) 
 
         and two hundred seventy-six and 45/100 dollars ($276.45) per week 
 
         on all of the prior payments of healing period benefits and 
 
         permanent partial disability benefits previously made to 
 
         claimant:  (1) defendants paid healing period benefits, and (2) 
 
         defendants had agreed to pay claimant 100 weeks of permanent 
 
         partial disability prior to hearing at the rate of two hundred 
 
         seventy-three and 35/100 dollars ($273.35) per week and were in 
 
         the process of making these payments at the time of the hearing.
 
         
 
              That all accrued amounts are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Codes section 
 
         85.30.
 
         
 
              That defendants pay the costs of this 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 Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 25th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         HUTCHISON V. LITTLE GIANT CRANE AND SHOVEL, INC.
 
         PAGE  15
 
         
 
 
 
 
 
         
 
                                      WALTER R. McMANUS, JR.
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Jim Lawyer
 
         Attorney-at-Law
 
         West Towers Office
 
         1200 35th St., STE 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Marvin Duckworth
 
         Attorney-at-Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
                                                1803; 3001
 
                                                Filed October 25, 1988
 
                                                WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOROTHY HUTCHISON,
 
         
 
              Claimant,                         File No. 820225
 
         
 
         vs.                                 A R B I T R A T I O N
 
         
 
         LITTLE GIANT CRANE AND SHOVEL          D E C I S I O N
 
         INC.,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 35 percent industrial disability for a 
 
         right shoulder injury based on impairment ratings of eight and 
 
         six to eight percent of the body as a whole.  Treating physician 
 
         said claimant could no longer perform her old job of nine years 
 
         in heavy industry of lining and glassing crane cabs.  Evaluating 
 
         physician did not disagree but spoke in allusive language.  
 
         Claimant's actual wage loss was over 50 percent.  There were a 
 
         number of disincentives to work such as the adoption of an infant 
 
         after the injury.
 
         
 
         3001
 
         
 
              Claimant normally worked a 40 hour work week or pretty close 
 
         to it.  A 32 hour work week in the 13 weeks prior to injury was 
 
         held to be not representative and was not included in the 
 
         calculation of gross weekly earnings for rate.
 
         
 
 
 
 
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
                                           
 
        PATRICIA DAVIS,
 
        
 
            Claimant,
 
                                                File No. 820525
 
        vs.
 
        
 
        DES MOINES GENERAL HOSPITAL,         A R B I T R A T I O N
 
        
 
            Employer,                          D E C I S I O N
 
        
 
        and
 
                                                    F I L E D
 
        LIBERTY MUTUAL INSURANCE CO.,
 
                                                   MAY 25 1989
 
            Insurance Carrier,
 
            Defendants.                 IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                             STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by Patricia 
 
             Davis, claimant, against Des Moines General Hospital, employer, 
 
             hereinafter referred to as Des Moines General, and Liberty Mutual 
 
             Insurance Company, insurance carrier, defendants, for workers' 
 
             compensation benefits as a result of an alleged injury on April 
 
             1, 1986. On October 11, 1988, a hearing was held on claimant's 
 
             petition and the matter was considered fully submitted at the 
 
             close of this hearing. The parties have submitted a prehearing 
 
             report of contested issues and stipulations which was approved 
 
             and accepted as a part of the record of this case at the time of 
 
             hearing. Oral testimony was received during the hearing from 
 
             claimant. The exhibits received into the evidence at the hearing 
 
             are listed in the prehearing report. According to the prehearing 
 
             report, the parties have stipulated to the following matters:
 
        
 
            1. On April 1, 1986, claimant received an injury arising 
 
        out of and in the course of employment with Des Moines General.
 
        
 
            2. Claimant is not seeking temporary total disability or 
 
        healing period benefits.
 
        
 
            3. If the injury is found to have caused permanent 
 
        disability, the type of disability is an industrial disability to 
 
        the body as a whole.
 
        
 
            4. If permanent disability benefits are awarded, they shall 
 
        begin as of May 9, 1988.
 
        
 
            5. Claimant's rate of weekly compensation in the event of 
 
        an award of weekly benefits from this proceeding shall be 
 
        $163.09.
 
        
 
             6. All requested medical benefits have been or will be paid 
 
             by defendants.
 
        
 
                                      ISSUES
 
        
 

 
        
 
 
 
 
 
             The parties submitted the following issues for determination 
 
             in this proceeding:
 
        
 
             I. Whether there is a causal relationship between the work 
 
             injury and the claimed permanent disability; and
 
        
 
             II. The extent of claimant's entitlement to weekly benefits 
 
             for disability.
 
        
 
                                 STATEMENT OF THE FACTS
 
        
 
             The following is a brief statement highlighting some of the 
 
             more pertinent evidence presented. Whether or not specifically 
 
             referred to in this statement, all of the evidence received at 
 
             the hearing was independently reviewed and considered in arriving 
 
             at this decision. Any conclusions about the evidence received 
 
             contained in the following statement should be viewed as 
 
             preliminary findings of fact. For the most part, the undersigned 
 
             has adopted claimant's proposed statement of facts with some 
 
             modifications.
 
        
 
            Patricia Davis is 42 years old. Her rate of compensation is 
 
        stipulated to be $163.09.
 
        
 
            To date, the employer-insurance carrier has paid 50 weeks of 
 
        permanent partial disability benefits as a result of the injury 
 
        of April 1, 1986.
 
        
 
            There is no dispute as to claimant's educational background. 
 
        Patricia Davis is a high school graduate. Additional schooling 
 
        includes one semester of course work in a licensed practical 
 
        nursing program. She has also received certificates for 
 
        completing courses as a nurse's aide, a medication aide, medical 
 
        terminology, and a certificate in cardiopulmonary resuscitation.
 
        
 
            There is no dispute concerning claimant's work history. Her 
 
        job history includes four months of work as a waitress in 
 
        Humboldt, Iowa. She then worked for one year as general office 
 
        help (reception, light typing, etc.) in the White Star Laundry 
 
        located in Des Moines, Iowa. Thereafter, she worked for EMCO 
 
        Company of Des Moines, Iowa. This job consisted of supplying 
 
        rivets to a machine used in the manufacture of component parts 
 
        for machinery. She left this employment because of the birth of 
 
        her child.
 
        
 
            Thereafter, the claimant worked for a period of eight years 
 
        for Heather Manor Retirement Home in Des Moines, Iowa. For three 
 
        of these years she worked as a nurse's aide performing a variety 
 
        of physical tasks involving the care of the patients. These 
 
        tasks included walking, lifting, and pulling patients in 
 
        providing needed services.
 
        
 
             On July 24, 1978, Patricia Davis was hired at Des Moines 
 
             General Hospital to work as a nurse's aide. Again, she performed 
 
             a variety of physical tasks to assist the floor nurses in the 
 
             proper care of patients at Des Moines General. Exhibit 9, pages 
 
             173-203, consist of performance reviews given to the claimant by 
 
             the appropriate personnel at Des Moines General Hospital. In 
 
             sum, the claimant was an excellent employee and mostly received 
 
             satisfactory reviews from her employer. Claimant testified that 
 
             she received one unsatisfactory performance appraisal due to 
 
             absenteeism. This, she attributed to a "flare-up" of her back 
 
             following a work injury in 1983.
 
        
 
            Prior to May 12, 1983, the claimant's medical history 
 
        concerning her low back was very good. On May 12, 1983, she 
 

 
        
 
 
 
 
 
        injured her low back while in the course of her employment at Des 
 
        Moines General Hospital. This injury required two weeks of 
 
        absence from work along with the physical therapy treatments. 
 
        The claimant returned to work without physical limitation or 
 
        alteration of her employment circumstances. The claimant 
 
        testified that she did have occasional flare-ups concerning low 
 
        back pain after that date. The flare-ups would cause her to miss 
 
        work although she did not miss more than one week at any time. 
 
        There was no alteration of her work requirements after any of 
 
        these flare-ups.
 
        
 
            Mrs. Davis was injured on April 1, 1986. At the time of the 
 
        injury, she was working in the cardiac care unit at Des Moines 
 
        General Hospital. She injured her low back while helping a 
 
        patient walk to the bathroom so that a sponge bath could be 
 
        administered. Claimant attempted to work the remainder of the 
 
        day but had to leave early to seek medical care concerning her 
 
        low back pain.
 
        
 
            Mrs. Davis was first seen by James Egly, D.O., on April 1, 
 
        1986, and thereafter embarked upon a course of conservative 
 
        treatment including osteopathic manipulative therapy, physical 
 
        therapy, medications, and a release from work activity (Exhibit 
 
        1, pages 57-76).
 
        
 
            On May 16, 1986, she was evaluated by Scott B. Neff, D.O. 
 
        During the course of his contact with Mrs. Davis, Dr. Neff 
 
        performed an EMG, CT scan, and a myelogram test. Dr. Neff also 
 
        referred the claimant to Stuart R. Winston, M.D., for a second 
 
        opinion as to the advisability of surgery. Dr. Neff also 
 
        encouraged weight loss by the claimant.
 
        
 
            Claimant underwent multilevel lumbar surgery on September 
 
        30, 1986. Claimant was released from the hospital three days 
 
        after the surgery. The surgery was successful in that claimant's 
 
        leg pain was eliminated.
 
        
 
             On December 22, 1986, Dr. Neff.opined that claimant should 
 
             not return to work as a nurse's aide at the hospital. Exhibit 1, 
 
             page 3, consists of Dr. Neff's office note reflecting his concern 
 
             for the risk of future injury to the claimant if she returned to 
 
             work.
 
        
 
            Dr. Neff concluded in his report of May 8, 1987 that the 
 
        claimant had a 10 percent impairment to her body despite 
 
        excellent results from her surgery. In his report of June 4, 
 
        1986, Dr. Neff referred to an "old herniated disc at the L5-Sl 
 
        level" with a new disc at L4-L5 level. It was never made clear 
 
        in his reports how much of the 10 percent rating was attributable 
 
        to the "old" injury and how much was directly related to the 
 
        alleged injury of April 1, 1986. In his office notes of May 20, 
 
        1986, Dr. Neff noted that the claimant was five feet five inches 
 
        (5' 5") tall and weighed in excess of 230 pounds. In the same 
 
        notes, he referred to the claimant as having been diagnosed 
 
        previously as having degenerative disc disease in her back which 
 
        he said was not surprising considering her significant obesity. 
 
        In the next to last paragraph of his office notes of May 20, 
 
        1986, Dr. Neff said that the claimant was an extreme risk for 
 
        reinjury, muscle soreness and continued degenerative disease 
 
        because of her obesity.
 
        
 
            Claimant lost 30 to 40 pounds prior to her injury and 
 
        testified that she never regained the weight. Dr. Neff still 
 
        recommends weight loss despite her successful recovery from 
 
        surgery.
 
        
 

 
        
 
 
 
 
 
            Thereafter, Mrs. Davis successfully underwent a work 
 
        hardening program and made excellent progress during the recovery 
 
        phase     from her surgery. The claimant was released to return 
 
        to work on May 11, 1987 (exhibit 1, page 2). However, Des Moines 
 
        General Hospital did not have work for the claimant at that time. 
 
        She remained off work for more than four months before 
 
        alternative employment was secured with Des Moines General 
 
        Hospital.
 
        
 
             On September 21, 1987, Mrs. Davis was returned to work at 
 
             Des Moines General as a clerk technician (clerk tech) in the 
 
             Harold Hughes Alcohol Recovery Unit. Claimant testified she is 
 
             currently paid $7.01 per hour in this employment. Her job duties 
 
             involve filing, computer work, preparation of files, and personal 
 
             contact with the patients in the alcohol recovery unit. A recent 
 
             5 percent salary increase has recently taken effect for all 
 
             employees at the hospital.
 
        
 
            On April 1, 1986 (date of injury), the claimant was earning 
 
        $6.29 per hour. At that time she was at the top of the pay scale 
 
        for a nurse's aide position. The claimant had been at the top of 
 
        the pay scale for approximately two years prior to her injury.
 
        
 
             When Mrs. Davis returned to work as a clerk technician in 
 
             September of 1987, she started at the rate of $6.68 per hour. 
 
             The clerk technician job has a maximum salary of $8.45 per hour. 
 
             Therefore, the claimant started in the middle of the salary range 
 
             for clerk technicians at the time she returned to work. The 
 
             current top of the pay scale for a nurse's aide in September of 
 
             1987 was $8.45 per hour, the same as for clerk technicians.
 
        
 
            Claimant's appearance and demeanor at the hearing indicated 
 
        she was testifying truthfully.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             I. The claimant has the burden of proving by a 
 
             preponderance of the evidence that the work injury is a cause of 
 
             the claimed disability. A disability may be either temporary or 
 
             permanent. In the case of a claim for temporary disability, the 
 
             claimant must establish that the work injury was a cause of 
 
             absence from work and lost earnings during a period of recovery 
 
             from the injury. Generally, a claim of permanent disability 
 
             invokes an initial determination of whether the work injury was a 
 
             cause of permanent physical impairment or permanent limitation in 
 
             work activity. However, in some instances, such as a job transfer 
 
             caused by a work injury, permanent disability benefits can be 
 
             awarded without a showing of a causal connection to a physical 
 
             change of condition. Blacksmith v. All-American, Inc., 290 
 
             N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 
 
             N.W.2d 181 (Iowa 1980).
 
        
 
            The question of causal connection is essentially within the 
 
        domain of expert medical opinion. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of 
 
        experts need not be couched in definite, positive or unequivocal 
 
        language and the expert opinion may be accepted or rejected, in 
 
        whole or in part, by the trier of fact. Sondag v. Ferris 
 
        Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to 
 
        such an opinion is for the finder of fact, and that may be 
 
        affected by the completeness of the premise given the expert and 
 
        other surrounding circumstances. Bodish v. Fischer, Inc., 257 
 
        Iowa 516, 133 N.W.2d 867 (1965).
 
        
 
            Furthermore, if the available expert testimony is 
 
        insufficient along to support a finding of causal connection, 
 

 
        
 
 
 
 
 
        such testimony may be coupled with nonexpert testimony to show 
 
        causation and be sufficient to sustain an award. Giere v. Asse 
 
        Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
        Such evidence does not, however, compel an award as a matter of 
 
        law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
        1974). To establish compensability, the injury need only be a 
 
        significant factor, not be the only factor causing the claimed 
 
        disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a 
 
        preexisting condition, an employee is not entitled to recover for 
 
        the results of a preexisting injury or disease but can recover 
 
        for an aggravation thereof which resulted in the disability found 
 
        to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
        N.W.2d 251 (1963).
 
        
 
        
 
             In the case sub judice, claimant contends that she has 
 
             suffered disability as a result of a work injury due to permanent 
 
             impairment to the the body as a whole. First, the uncontroverted 
 
             evidence from Dr. Neff establishes that she has indeed suffered a 
 
             10 percent permanent partial impairment to the body as a whole. 
 
             She is also restricted in her activities from lifting over 40 
 
             pounds and cannot lift, bend or pull objects while bending over a 
 
             bed. She can also not perform the duties of a nurse's aide.
 
        
 
            Secondly, the evidence shows the requisite causal connection 
 
        between the work injury and the above-stated permanent 
 
        impairment. Admittedly, Dr. Neff did not apportionate the 10 
 
        percent rating between the 1983 and 1986 injuries, but he said it 
 
        was due to surgery. The surgery was not performed or deemed 
 
        necessary prior to the 1986 injury. Claimant was able to return 
 
        to work as a nurse's aide before 1986. Therefore, it will be 
 
        found that the work injury of 1986 was a cause of the 10 percent 
 
        permanent partial impairment.
 
        
 
            II. Claimant must establish by a preponderance of the 
 
        evidence the extent of weekly benefits for permanent disability 
 
        to which claimant is entitled. As the claimant has shown that 
 
        the work injury was a cause of a permanent physical impairment or 
 
        limitation upon activity involving the body as a whole, the 
 
        degree of permanent disability must be measured pursuant to Iowa 
 
        Code section 85.34(2)(u). However, unlike scheduled member 
 
        disabilities, the degree of disability under this provision is 
 
        not measured solely by the extent of a functional impairment or 
 
        loss of use of a body member. A disability to the body as a 
 
        whole or an "industrial disability" is a loss of earning capacity 
 
        resulting from the work injury. Diederich v. Tri-City Railway 
 
        Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical 
 
        impairment or restriction on work activity may or may not result 
 
        in such a loss of earning capacity. The extent to which a work 
 
        injury and a resulting medical condition has resulted in an 
 
        industrial disability is determined from examination of several 
 
        factors. These factors include the employee's medical condition 
 
        prior to the injury, immediately after the injury and presently; 
 
        the situs of the injury, its severity and the length of healing 
 
        period; the work experience of the employee prior to the injury, 
 
        after the injury and potential for rehabilitation; the employee's 
 
        qualifications intellectually, emotionally and physically; 
 
        earnings prior and subsequent to the injury; age; education; 
 
        motivation; functional impairment as a result of the injury; and 
 
        inability because of the injury to engage in employment for which 
 
        the employee is fitted. Loss of earnings caused by a job 
 
        transfer for reasons related to the injury is also relevant. 
 
        Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See 
 
        Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
        28, 1985).
 
        
 

 
        
 
 
 
 
 
             Claimant's medical condition before the work injury was not 
 
             excellent. She admitted to significant back flare-ups prior to 
 
             1986. However, claimant was able to return to work following the 
 
             1983 injury as a nurse's aide and to fully perform such work 
 
             prior to the work injury in this case. After the second injury, 
 
             claimant is not able to return to work as a nurse's aide and has 
 
             received severe work restrictions in her physical activities.
 
        
 
            Apart from her lost earnings during her healing period which 
 
        was compensated by healing period benefits, claimant has suffered 
 
        a loss in actual earnings as a result of the work injury. 
 
        Claimant was at the top of her salary range at the time of her 
 
        injury and would probably still be there today but for the 
 
        injury. Although claimant's current salary range is the same, 
 
        she is not at the top of her range. Also, there is no assurance 
 
        that claimant will attain the top of her current salary range as 
 
        future absences from work for back flare-ups are likely. 
 
        However, in any event, a showing that claimant had no loss of 
 
        actual earnings does not preclude a finding of industrial 
 
        disability. See Michael v. Harrison County, 34 Biennial Rep., 
 
        Iowa Indus. Comm'r 218, 220 (Appeal Dec. 1979).
 
        
 
            Claimant is 42 years of age and should be in the most 
 
        productive years of her working career. Her loss of future 
 
        earnings from employment due to her disability is more severe as 
 
        would be the case for a younger or older individual. See Becke 
 
        v. Turner-Busch, Inc., 34 Biennial Report, Iowa Indus. Comm'r 34 
 
        (Appeal Dec. 1979). See also Walton v. B & H Tank Corporation, 
 
        II Iowa Indus. Comm'r Rep. 426 (Appeal Dec. 1981).
 
        
 
            Claimant has shown great motivation to return to work and 
 
        probably would have had difficulty doing so had Des Moines 
 
        General not returned her to a different job. Claimant had 
 
        participated in the job service reemployment program but no 
 
        alternate employment was found despite her full cooperation in 
 
        such a program and her high motivation.
 
        
 
            Defendants must be commended for their efforts to return 
 
        claimant to the work force but such efforts should not prevent 
 
        claimant from being fully compensated for her disability. 
 
        Claimant has shown a loss of earning capacity. Defendants' 
 
        reward for their efforts comes by virtue of the fact that the 
 
        award herein has been greatly reduced because of her 
 
        reemployment.
 
        
 
             After examination of all the factors, it is found as a 
 
             matter of fact that she has suffered a 30 percent loss of her 
 
             earning capacity from her work injury. Based upon such a 
 
             finding, claimant is entitled as a matter of law to 150 weeks of 
 
             permanent partial disability benefits under Iowa Code section 
 
             85.34(2)(u) which is 30 percent of 500 weeks, the maximum liable 
 
             for an injury to the body as a whole in that subsection.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. The work injury of April 1, 1986 was a cause of a 10 
 
             percent permanent partial impairment to the body as a whole and 
 
             permanent restrictions upon claimant's physical activities 
 
             consisting of no lifting over 40 pounds, and no lifting, pulling 
 
             or pushing in a bent over position. Claimant is also restricted 
 
             from physical work normally assigned to a nurse's aide. In 1983, 
 
             claimant had a prior work injury which probably resulted in a 
 
             herniated disc, but she recovered from this injury and was able 
 
             to return to work as a nurse's aide. Claimant had occasional 
 
             back problems before 1986 requiring occasional absences from 
 
             work. Despite these problems, claimant was not required to 
 

 
        
 
 
 
 
 
             receive surgery until the work injury of 1986. This last injury 
 
             precipitated the permanent partial impairment.
 
        
 
            2. The work injury of April 1, 1986 and the resulting 
 
        permanent partial impairment is the cause of a 30 percent earning 
 
        capacity. Claimant is unable to return to work as a nurse's 
 
        aide, the employment for which he is best suited given her past 
 
        experience and education. Claimant is 42 years of age and is a 
 
        high school graduate with specialized short course training as a 
 
        nurse's aide. Claimant has returned to work as a clerk 
 
        technician but with a loss of actual earnings as she is not 
 
        receiving the same pay had she not suffered a work injury and she 
 
        may never receive the same pay. Claimant is motivated and fully 
 
        participated in all efforts to find alternative employment 
 
        outside Des Moines General but could not do so prior to 
 
        reemployment by Des Moines General.
 
        
 
                                CONCLUSION OF LAW
 
        
 
             Claimant has established under law entitlement to benefits 
 
             for a 30 percent permanent partial industrial disability.
 
        
 
                                      ORDER
 
        
 
             1. Defendants shall pay to claimant one hundred fifty (150) 
 
             weeks of permanent partial disability benefits at the rate of one 
 
             hundred sixty-three and 09/100 dollars ($163.09) per week from 
 
             May 9, 1988.
 
        
 
              2. Defendants shall pay accrued weekly benefits in a lump 
 
             sum and shall receive a credit against this award for all 
 
             benefits previously paid.
 
        
 
             3. Defendants shall pay interest on weekly benefits awarded 
 
             herein as set forth in Iowa Code section 85.30.
 
        
 
            4. Defendants shall pay the costs of this action pursuant 
 
        to Division of Industrial Services Rule 343-4.33.
 
        
 
            5. Defendants shall file activity reports upon payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
            Signed and filed this 25th day of May, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Channing L. Dutton
 
        Attorney at Law
 
        West Towers Office
 
        1200 35th St, Ste 500
 
        West Des Moines, IA 50265
 
        
 
        Mr. W. C. Hoffmann
 
        Attorney at Law
 
        500 Liberty Bldg
 
        Des Moines, IA 50309
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA DAVIS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 820525
 
            DES MOINES GENERAL HOSPITAL,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            STATEMENT OF THE CASE
 
            Defendants appeal from an arbitration decision awarding 
 
            claimant thirty percent permanent partial disability for 
 
            industrial purposes as a result of claimant's April 1, 1986 
 
            work injury.
 
            The record on appeal consists of the transcript of the 
 
            arbitration hearing; joint exhibits 1 through 5 and 9 
 
            through 11; joint exhibits 6 through 8 were deleted by the 
 
            parties prior to hearing.  Both parties filed briefs on 
 
            appeal.
 
            ISSUES
 
            Defendants state the issues on appeal are:
 
            
 
                  I.  Was there causal connection between 
 
                 Claimant's alleged injury of April 1, 1986, and 
 
                 her ultimate impairment by Dr. Neff of 10% which 
 
                 would support a finding of industrial disability?
 
            
 
                 II.  Did the Claimant bear her burden of 
 
                 establishing any industrial disability or, 
 
                 alternatively, did the records support the finding 
 
                 of the Deputy Industrial Commissioner of 30% 
 
                 Permanent Partial Industrial Disability?
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            REVIEW OF THE EVIDENCE
 
            The arbitration decision dated May 25, 1989 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 the evidence.
 
            ANALYSIS
 
            Claimant was born July 13, 1946 and is a high school 
 
            graduate.  The greater share of claimant's work experience 
 
            has been in the health care field, although claimant worked 
 
            briefly as a waitress, and in general office personnel and 
 
            manufacturing.  
 
            Defendants hired claimant on July 24, 1978 as a nurse's aid.  
 
            Claimant received satisfactory evaluations from her 
 
            supervisors and advanced up the pay scale.  Claimant was at 
 
            the top of the pay scale for two years prior to her April 1, 
 
            1986 work injury.  Claimant injured her back on May 12, 1983 
 
            and experienced back pain flare-ups following May 12, 1983 
 
            injury which caused her to miss work.
 
            The uncontroverted evidence from Scott B. Neff, D.O., 
 
            establishes that there is a casual connection between 
 
            claimant's April 1, 1986 work injury and a permanent partial 
 
            impairment to the body as a whole.  Claimant is restricted 
 
            in her activities from lifting over forty pounds and cannot 
 
            lift, bend or pull objects while bending over a bed.  
 
            Dr. Neff did not apportion the 10 percent functional 
 
            impairment rating between claimant's 1983 and 1986 injuries.  
 
            Claimant's rating was based on a discetomy for herniated 
 
            discs at multiple levels.  One of the levels, L4-L5, Dr. 
 
            Neff attributed to the April 1, 1986 work injury.  The 
 
            second level requiring surgery, L5-S1, was calcified and was 
 
            attributable to  claimant's 1983 injury.  It is clear from 
 
            the evidence that claimant continued to have back pain 
 
            flare-ups following her 1983 injury.  In addition, claimant 
 
            testified that she missed work but never more than a week at 
 
            a time as a result of the 1983 injury.  Therefore, a portion 
 
            of the 10 percent functional impairment is attributable to 
 
            claimant's 1983 injury.  Claimant was able to return to her 
 
            duties as a nurse's aid following the 1983 injury.  Claimant 
 
            has not returned to her duties as a nurse's aid following 
 
            the 1986 work injury.  The greater portion of claimant's 10 
 
            percent functional impairment is attributable to claimant's 
 
            April 1, 1986 work injury.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant was placed by defendants in a new position with the 
 
            same salary as she had prior to her injury and the same 
 
            opportunity to advance, however, that does not preclude the 
 
            finding that claimant experienced a loss of earning 
 
            capacity.  "Loss of actual earnings does not equate to loss 
 
            of earning capacity.  Reduction of actual earnings or lack 
 
            thereof, like functional impairment, is only one component 
 
            of earning capacity.  Claimant's restrictions limit his 
 
            ability to secure a position for which he is qualified."  
 
            Elderkamp v. Archer Daniels Midland, Appeal Decision, May 
 
            31, 1990.  Claimant is restricted from lifting over forty 
 
            pounds, and was instructed to use proper back biomechanics.  
 
            These restrictions limit claimant's ability to return to her 
 
            duties as a nurse's aid.  
 
              After evaluating all the evidence presented, it is found 
 
            that claimant sustained a 20 percent industrial disability 
 
            as a result of claimant's April 1, 1986 work injury.
 
            FINDINGS OF FACT
 
            1.  Claimant was born July 13, 1946 and is a high school 
 
            graduate with the majority of her work experience in the 
 
            health care field.
 
            2.  The parties stipulated that claimant suffered a back 
 
            injury on April 1, 1986 that arose out of and in the course 
 
            of her employment with the defendants.
 
            3.  There is a casual connection between claimant's April 1, 
 
            1986 work injury and claimant's permanent disability.
 
            4.  Claimant suffered a back injury on May 12, 1983 which 
 
            caused claimant to have back pain flare-ups and resulted in 
 
            claimant missing work.
 
            5.  Claimant's current restrictions include no lifting over 
 
            forty pounds, and no lifting, pulling or pushing in a bent 
 
            over position.
 
            6.  Claimant had multilevel lumbar surgery on an acute large 
 
            herniated disc at L4-L5; and at the L5-S1 level on September 
 
            30, 1986.
 
            7.  Dr. Neff rated claimant 10 percent functionally 
 
            impaired.  A portion of the 10 percent functional impairment 
 
            is attributable to claimant's 1983 injury, while the 
 
            majority of the functional impairment is attributable to 
 
            claimant's April 1, 1986 work injury.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            8.  As a result of claimant's restrictions, she is unable to 
 
            perform the duties required as a nurse's aid.  Defendants 
 
            placed claimant in a position as a clerk technician which 
 
            allowed claimant to use skills acquired as a nurse's aid and 
 
            allows her to remain in the health care field for which she 
 
            is suited.
 
            9.  Claimant's current salary is the same as prior to her 
 
            injury. 
 
            10. Claimant has the same opportunity to advance to the top 
 
            salary level at her new position as in her old position as a 
 
            nurse's aid.
 
            11. Claimant suffered a 20 percent loss of earning capacity 
 
            as a result of her April 1, 1986 work injury. 
 
            CONCLUSION OF LAW
 
            Claimant has proved a casual connection between the April 1, 
 
            1986 work injury and a permanent disability.
 
            Claimant has proved entitlement to 20 percent industrial 
 
            disability as a result of claimant's April 1, 1986 work 
 
            injury.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants shall pay to claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred sixty-three and 09/100 dollars ($163.09) per 
 
            week from May 9, 1988.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive a credit against this award for all 
 
            benefits previously paid.
 
            That defendants shall pay interest on weekly benefits awards 
 
            herein pursuant to Iowa Code section 85.30.
 
            That defendants shall pay the costs of this proceeding 
 
            including the cost of transcription of the arbitration 
 
            decision pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            That defendants shall file activity reports as requested by 
 
            this agency pursuant to Division of Industrial Services Rule 
 
            343-3.1
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St., Ste. 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. W. C. Hoffmann
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1402; 1803
 
                                          Filed August 8, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA DAVIS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 820525
 
            DES MOINES GENERAL HOSPITAL,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.2
 
            Claimant proved a casual connection between her April 1, 
 
            1986 work injury and a permanent partial impairment to the 
 
            body as a whole.
 
            
 
            1803
 
            Claimant proved entitlement to 20 percent industrial 
 
            disability as a result of her April 1, 1986 work injury.  
 
            Claimant was placed by defendants in a new position with the 
 
            same salary as she had prior to her injury and the same 
 
            opportunity to advance.  That did not preclude a finding 
 
            that claimant experienced a loss of earning cpapacity.  
 
            Claimant was restricted in her activities and was rated 10 
 
            percent functional impairment following a discetomy at two 
 
            levels.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                                       51803
 
                                       Filed May 25, 1989
 
                                       Larry P. Walshire
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        PATRICIA DAVIS,
 
        
 
            Claimant,
 
        
 
        vs.                                     File No. 820525
 
        
 
        DES MOINES GENERAL HOSPITAL,         A R B I T R A T I O N
 
        
 
            Employer,                         D E C I S I O N
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        51803 - Nonprecedential
 
             
 
             Extent of permanent partial disability issue.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE D. McMILLAN,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 820584
 
         
 
         HILL TOP CARE CENTER,                     A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         and
 
         
 
         IOWA HEALTH CARE ASSOCIATION/
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Diane 
 
         McMillan, claimant, against Hill Top Care Center, employer, and 
 
         Iowa Health Care Association, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury which arose out of and in the course of her employment 
 
         on January 21, 1986.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner on October 18, 1989 
 
         and was considered fully submitted at the close of the hearing.  
 
         The record in this case consists of the testimony of claimant, 
 
         Dennis McMillan, her husband, and Jon Neubaum; joint exhibits 1 
 
         through 12, inclusive, in addition to the deposition of J. 
 
         Michael Donohue, M.D., with one deposition exhibit.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved on October 18, 1989, the following  issues are presented 
 
         for resolution:
 
         
 
              1. Whether the injury of January 21, 1986 is the cause of 
 
         the permanent disability on which claimant now bases her claim;
 
         
 
              2. The extent of claimant's entitlement to permanent partial 
 
         disability benefits, if any, stipulated to be an industrial 
 
         disability to the body as a whole; and
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. Claimant's entitlement to certain medical benefits under 
 
         Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of her employment on January 21, 1986, when, while hugging 
 
         a resident, she heard a "ripping" sound in her back as though a 
 
         muscle was torn.  Claimant stated she experienced radiating pain 
 
         in her back, rear end, and legs like she had "never experienced 
 
         before" and that she went to see her family doctor (Kelly) who 
 
         prescribed physical therapy but eventually told her he was 
 
         "getting nowhere" so he referred her to J. Michael Donohue, M.D., 
 
         of Iowa Lakes Orthopaedics.  Claimant recalled that at Dr. 
 
         Donohue's direction she underwent one week of bed rest, x-rays 
 
         and a CT scan but that she continued to experience radiating 
 
         pain.  Claimant testified she underwent a myelogram on May 17, 
 
         1986 which showed "nothing conclusive" and that Dr. Donohue 
 
         recommended she be seen at the Mayo Clinic where she had "many 
 
         tests and an MRI."
 
         
 
              Claimant offered that Dr. Donohue eventually released her to 
 
         return to work at a "slow rate" and with the recommendation that 
 
         she limit her lifting activities.  Claimant recalled she returned 
 
         to work in the fall of 1986, that defendant has been "decent and 
 
         understanding" about her return but that her problems have 
 
         continued "off and on."  Claimant testified that while she was at 
 
         work on January 13, 1987 she had "so much pain" in her left leg 
 
         that she could not walk, that she left work and went to see Dr. 
 
         Kelly who recommended bed rest.  Claimant stated she did not go 
 
         to see Dr. Donohue because she was embarrassed "over her 
 
         continued problems" and afraid to cause any more problems.  
 
         Claimant testified that she eventually did return to see Dr. 
 
         Donohue and that he referred her to the Back Rehabilitation 
 
         Clinic where claimant had treatment from April 13, 1987 through 
 
         June 2, 1987.  Claimant recalled that she advised her employer 
 
         about going to the back clinic and that the employer did not 
 
         voice any objection to her attendance there.  Claimant stated 
 
         that Dr. Donohue had recommended the back clinic earlier but she 
 
         did not decide to go until April.  Claimant expressed her feeling 
 
         that results were gained by her attendance at the back clinic as 
 
         at that time she was "feeling positive" and was better for a week 
 
         or so afterwards but that eventually the "problems started all 
 
         over again" and the radiating pain and inability to walk 
 
         returned.  Claimant testified Dr. Donohue put her on an exercise 
 
         program at which she worked diligently until the pain returned.
 
         
 
              Claimant stated that on July 19, 1987 while wiping out the 
 
         bathtub at home, her "back went into spasms" and that she could 
 
         not move.  Claimant testified this was consistent with the "other
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         things that have happened" and no physician has suggested that 
 
         this is a new injury.
 
         
 
              Claimant, who has returned to work and is currently employed 
 
         as the activity counselor and admissions coordinator for 
 
         defendant, testified that currently she has problems with 
 
         "prolonged bending" particularly when working on art projects 
 
         with the residents, that her pain increases when she follows an 
 
         exercise routine, that moving to the left or right at the waist 
 
         causes pain across her back, and that she is on a 50 pound 
 
         lifting restriction.  Claimant stated there is no time that she 
 
         is totally free from aches and pains but that some days are 
 
         worse, some better, depending on her level of activity.  Claimant 
 
         could not remember the last time she had a "fantastic day."
 
         
 
              On cross-examination, claimant revealed she has had some 
 
         short-lived problems with her back in the past and that in 1974 
 
         she was hospitalized after an automobile accident and was 
 
         diagnosed as having a cerebral concussion and cervical ligament 
 
         strain.  Claimant could not "think of" any medical treatment she 
 
         had during the eighteen months immediately prior to hearing 
 
         except for an appointment "just recently" (before hearing).  
 
         Claimant stated that she "loves" her job, is a "good employee" 
 
         and hopes that her boss thinks so too.
 
         
 
              Dennis Dale McMillan testified that "many, many, many times" 
 
         when he has come home from work he has found claimant lying on 
 
         the couch with a heating pad, crying, and that claimant has cried 
 
         as much about the pain as about missing work and being a problem 
 
         at work.  Mr. McMillan stated that since claimant has to put up 
 
         with her pain anyway, she might just as well do it "at a job she 
 
         loves" and that claimant therefore has no intention of leaving 
 
         her employment.
 
         
 
              Jon Neubaum, who identified himself as the principal 
 
         stockholder, with his wife, of the Hill Top Care Center, 
 
         testified that claimant has always done a good job, that she 
 
         relates well to the residents, that she is a "real asset" to the 
 
         company and a "valued employee" whom he hopes will continue to 
 
         work for the care center.
 
         
 
              J. Michael Donohue, M.D., orthopedic surgeon, testified he 
 
         first saw claimant on March 25, 1986 and was given a history 
 
         consistent with that claimant gave at hearing.  Dr. Donohue 
 
         explained that the x-rays he reviewed revealed no fractures, bony 
 
         lesions or significant disc space narrowing, and that he rendered 
 
         a diagnosis that claimant's symptoms were secondary to lumbar 
 
         disc syndrome, directly related to the injury at work on January 
 
         21, 1986.  Dr. Donohue recalled he initially utilized 
 
         conservative care of bed rest and anti-inflammatories, then 
 
         recommended hospitalization during which a CT scan was performed
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 4
 
         
 
         
 
         which revealed a "mild bulge of the disk between the fourth and 
 
         fifth lumbar vertebral bodies.  I made a note that no other 
 
         significant lesions or stenosis, narrowing, was noted."  (Donohue 
 
         Deposition, pages 10-11)  Dr. Donohue recommended:
 
         
 
              I again recommended the therapy program and a gradual
 
              resumption of activities over a three-week period of
 
              time and next saw Mrs. McMillan on April 23, 1986.  At
 
              that point the patient again was having what I
 
              described as very slow improvement and continued to
 
              have significant tenderness as well as limitation in
 
              motion on physical examination.  Because of the
 
              persistence in her symptoms I recommended that we
 
              attempt to treat her situation with strict bed rest in
 
              the hospital, a treatment with an anti-inflammatory,
 
              that being Prednisone, and a physical therapy program.
 
              She agreed to this approach and on the following
 
              morning was admitted.  After one week in the hospital
 
              she did not significantly improve.
 
         
 
         (Donohue Dep., p. 13)
 
         
 
              A myelogram was done on May 7, 1986 which revealed no 
 
         significant bulging or herniations of any of the discs noted in 
 
         the lumbar region.  Dr. Donohue testified that at that time he 
 
         felt he had nothing further to offer claimant and made 
 
         arrangements for her to be evaluated at the Mayo Clinic.  When 
 
         the Mayo Clinic failed to uncover any specific cause of 
 
         claimant's chronic low back and lower extremity pain, claimant 
 
         was advised to gradually increase her normal activities and 
 
         contact Dr. Donohue in the fall as "we were starting at that time 
 
         and that I felt she would be an excellent candidate for this 
 
         program."  (Donohue Dep., p. 19)
 
         
 
              Dr. Donohue also recommended that claimant avoid any 
 
         repetitive bending or lifting and testified that:
 
         
 
              I next saw the patient on January 21, 1987 when she re-
 
              lated to me that she was having a reoccurrence in the
 
              severity of her low back symptoms.  She related to me
 
              that the previous week she developed a significant in-
 
              crease in pain in both legs with radiation down both of
 
              the legs but primarily on the left side.  She was eval-
 
              uated by Dr. Kelly in Spencer.  And his recommendation
 
              to her would be that she be reevaluated by me for pos-
 
              sible surgical intervention.
 
         
 
                At that point I discussed the back rehabilitation
 
              program with the patient and informed her that I'd sent
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              a letter to her insurance carrier on November 10, 1986,
 
              but I had not heard back from them.
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 5
 
         
 
         
 
                I also made a note in my dictation that.day that a
 
              copy of the letter as well as brochures explaining the
 
              back rehabilitation program were forwarded to the in-
 
              surance carrier's office on 1-14-87.  I related to her
 
              that she would proceed with the rehabilitation program
 
              if approval was obtained and that we would contact her
 
              when we heard from the insurance company.
 
              (Donohue Dep., p. 22)
 
         
 
         
 
              When asked to summarize what benefits claimant may have 
 
         achieved with the back rehabilitation program, Dr. Donohue 
 
         testified:
 
         
 
              The -- unfortunately from a subjective standpoint my
 
              recollection in reviewing the patient's record from
 
              July -- or-excuse me -- June 5, 1987 is that upon com-
 
              pletion of eight weeks of the rehabilitation program,
 
              she had been able to normalize her strength values,
 
              which again was the goal of the program.  But she con-
 
              tinued to be bothered by discomfort in the back with
 
              radiation down the left leg that was exacerbated by
 
              bending and lifting activities.
 
         
 
         (Donohue Dep., p. 29)
 
         
 
              Dr. Donohue testified that he was asked to evaluate claimant 
 
         on October 21, 1987 with the purpose of a permanency rating and 
 
         limitation.  He summarized this evaluation as:
 
         
 
              A. ...the only abnormalities were some mild limitation
 
              in motion with respect to hyperextension or extending
 
              the back.  She also related to me tenderness with pal-
 
              pation of the lower back region.  But the remainder of
 
              the examination was normal.
 
         
 
              Q. Okay. Based upon the history which you obtained
 
              from this patient in those 20 months prior to this time
 
              and the tests which you had done previously and the ex-
 
              amination and tests which you did on October 21, 1987,
 
              did you arrive at an opinion within a reasonable degree
 
              of medical certainty as to the degree of physical or
 
              functional impairment that you found in this woman at
 
              that time?
 
         
 
              A. Yes, I did.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q. What was that opinion, Doctor?
 
         
 
              A. My opinion on that date was that the patient had
 
              reached maximum medical improvement.  And furthermore
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 6
 
         
 
         
 
              based on the objective findings that she had sustained
 
              a 5 percent permanent impairment of the person.  I
 
              further stated in the record at that time that I would
 
              attribute this permanent impairment rating to her in-
 
              jury of 1-21-86.
 
         
 
              ....
 
         
 
              Q. What physical restrictions did you place on her as
 
              of October 21, 1987?
 
         
 
              A. On that date I recommended that the patient modify
 
              her daily activities with respect to the amount of
 
              standing or walking as well as lifting or bending.  And
 
              I also gave her a 50-pound maximum lifting restriction.
 
         
 
         (Donohue Dep., pp. 32-33)
 
         
 
              Claimant returned to see Dr. Donohue on September 11, 1989 
 
         and Dr. Donohue explained:
 
         
 
              I think a brief summary of the September 11 visit would
 
              be that the patient's condition has been largely un-
 
              changed both with respect to her subjective discomfort
 
              as well as to her physical examination.  My conclusions
 
              were that she had sustained low back injury and had
 
              residual discomfort.
 
         
 
                And my recommendations were unchanged from that of
 
              October of 1987 in that I recommended that she, No. 1,
 
              maintain as high a level of activity as tolerable.  No.
 
              2, modify her daily activities to avoid repetitive
 
              bending or lifting or prolonged standing or walking if
 
              they exacerbated her symptoms.  No. 3, a 50-pound
 
              maximum lifting restriction.  And No. 4, I again
 
              reiterated on that date that I believe the patient had
 
              a 5 percent permanent impairment to the person and
 
              would relate impairment to her injury of 1-21-86.
 
         
 
         (Donohue Dep., p. 36)
 
         
 
              On cross-examination, Dr. Donohue was asked about claimant's 
 
         prior back problems and, in response, stated:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   In reviewing all the available records., if any
 
              individual goes anywhere from a 12-plus-month interval
 
              without symptoms with a soft tissue injury, whether
 
              that's a neck strain or shoulder sprain or a back
 
              sprain, then my conclusion is that that particular
 
              injury has resolved.
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 7
 
         
 
         
 
                On the other hand, if an individual is injured
 
              and a good example would be Mrs. McMillan.  If you just
 
              look at my records going back to 1986, if there's a
 
              history of frequent treatment on a very regular basis
 
              even though she may come in -- and Mr. Scott had
 
              brought up a recent exacerbation.  Unless there was a
 
              significant history of another injury, my assumption
 
              would be that she has flared up her previous back
 
              injury.  And this applies to any patient.
 
         
 
                On the other hand, unfortunately, it didn't occur in
 
              Mrs. McMillan's case.  Say in 1986 that her back pain
 
              had gone away completely and she had a one- or two- or
 
              three-year interval and came into my office with new
 
              onset of back pain.  I would say there's a new episode
 
              rather than a throw back of the other original injury
 
              on 1-21-86.
 
         
 
         (Donohue Dep., pp. 44-45)
 
         
 
              On August 18, 1986, W. Neath Folger, M.D., of the Mayo 
 
         Clinic Department of Neurology, reported:
 
         
 
                Mrs. Diane McMillan was recently re-evaluated in the
 
              Department of Neurology at the Mayo Clinic for continu-
 
              ing problems with low back pain.  She is now complain-
 
              ing of a warm sensation intermittently but in a fixed
 
              location over the lateral calves of both legs noted
 
              particularly when sitting.  There is intermittent
 
              tingling in the left lateral calf. Additionally she
 
              has chronic low back pain extending to the left
 
              buttock, posterior lateral thigh, knee and anterior
 
              shin described as a "drawing sensation."  This is worse
 
              while riding in a car and she has also experienced a
 
              "gel" effect after sitting for long periods.  The
 
              exercise program only worsens her discomfort.  She has
 
              been able to return to work as you know on a 4-hour day
 
              but feels very fatigued and tired at the end of her
 
              day.
 
         
 
                A detained neurological examination remains entirely
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              normal.  Straight leg raising was greater than 90
 
              degrees bilaterally and reversed straight leg raising
 
              was also negative.  Back motion was normal and there
 
              was no paravertebral spasm.
 
         
 
                I appreciate your letter reviewing the results of
 
              the pelvic CT scan.  We obtained an MRI scan of the
 
              lumbar spine which showed only a small bulging annulus
 
              at the L4 level.
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 8
 
         
 
         
 
                 Like you, we cannot uncover any specific organic
 
              cause of her chronic low back and lower extremity
 
              symptoms.  I suggest that we take a very positive
 
              approach and try to get her back into the mainstream of
 
              life at this point.  I recommended a very well-defined
 
              program including flexion exercises only following use
 
              of a hydroculator and massage each day after work.  I
 
              suggested a graduated increase in her work time from 4
 
              to 6 to 8 hours over the next four weeks.  In addition,
 
              she needs a reconditioning program and I strongly
 
              recommended bicycling as the best exercise to avoid
 
              exacerbating her low back problem.  I indicated that
 
              she should not be doing lifting over 25 pounds nor
 
              should she be in situations where she would have to do
 
              repeated lifting or bending, and also as I believe is
 
              consistent with her job, she should not be asked to sit
 
              or stand for prolonged periods without having the
 
              opportunity to move around.  We had a fairly frank dis-
 
              cussion about problems with musculoskeletal discomfort
 
              and the possibility that this may continue to be a
 
              chronic problem but she should try to get on with her
 
              life.  She seemed to understand that the evaluation has
 
              ended and that she will have to manage with some dis-
 
              comfort.  I think with positive reinforcement she will
 
              do very well.
 
         
 
         (Donohue Dep. Ex. D)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The parties do not dispute that on January 21, 1986 claimant 
 
         sustained an injury which arose out of and in the course of her 
 
         employment and have agreed that the injury was the cause of a 
 
         stipulated period of temporary total disability/healing period.  
 
         What is initially at issue is the matter of causal connection.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 21, 1986 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v.Fischer Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 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).
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 9
 
         
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris.Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact. Id. at 907. Further, the weight to be given  to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co.,261 Iowa 
 
         352, 154 N.W.2d 128 (1967).
 
         
 
              Dr. Donohue has opined that claimant's condition is the 
 
         result of her injury of January 21, 1986.  Dr. Donohue was not 
 
         swayed in this opinion merely because claimant had had some prior 
 
         back problems as claimant had remained symptom-free for an 
 
         extended period of time prior to this injury.  The undersigned 
 
         would agree.  Further, this deputy does not find convincing the 
 
         fact that claimant experienced some back spasm while cleaning her 
 
         bathtub in July of 1987.  There is no evidence in the record 
 
         which would credibly support the proposition that this is a new 
 
         injury or that these spasms were anything but a continuing 
 
         symptom of her work injury of January 21, 1986   Dr. Donohue also 
 
         stated that at no time during his treatment of claimant did he 
 
         find evidence of any new injuries.  Clearly, claimant has met her 
 
         burden of showing that the injury of January 21, 1986 is the 
 
         cause of the disability on which she now bases her claim.
 
         
 
              As claimant has sustained an injury to the body as a whole, 
 
         her permanent disability, if any, is evaluated by the industrial 
 
         method.  Only one physician has rendered an opinion of permanent 
 
         impairment.  Dr. Donohue has opined that claimant has sustained a 
 
         5 percent permanent partial impairment and advised claimant to 
 
         maintain as high a level of activity as tolerable, modify her 
 
         daily activities to avoid repetitive bending or lifting or 
 
         prolonged standing or walking if they exacerbated her symptoms 
 
         and imposed a 50 pound maximum lifting restriction.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 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
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 10
 
         
 
         
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter 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.  
 
         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 is 37 years old, a high school graduate, who 
 
         completed cosmetology school and utilized this training for about 
 
         one year.  Claimant also has prior work experience working road 
 
         construction and as a housekeeper with her current employer. 
 
         Claimant became the activity coordinator (for which she attended 
 
         a 60 hour course) for defendant in approximately June 1984 at a 
 
         wage of $4.50 per hour when defendant had 51 beds in the 
 
         facility.  Claimant currently is the activities counselor and 
 
         admissions coordinator who supervises a full-time assistant.  
 
         Defendant currently has 137 beds in the facility and claimant 
 
         earns $7.35 per hour to "keep people alert and active both in and 
 
         out of their rooms, socially, recreationally and spiritually." 
 
         Claimant explained that she plans up to three activities per day
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 11
 
         
 
         
 
         because of the number of residents and although the job involves 
 
         a lot of desk work it also requires her to be on her feet.  
 
         Claimant has been able to maintain this employment 
 
         notwithstanding the injury which certainly speaks well for  her 
 
         motivation.  Claimant's concern over her employer's reaction to 
 
         continued medical care also shows to this deputy a true loyalty 
 
         to her employment particularly where there is no evidence that 
 
         the employer has expressed any dissatisfaction with claimant's 
 
         conduct while suffering from the ramifications of this injury.  
 
         This employment appears extraordinarily stable as claimant is 
 
         more than satisfied with her position, the employer candidly 
 
         admits that claimant is an "excellent employee" and an asset to 
 
         the company and the employer has accommodated claimant's 
 
         restrictions.  The industrial commissioner has held in Gallardo 
 
         v. Firestone Tire & Rubber Company, Appeal Decision filed October 
 
         21, 1987, that an employer's repeated efforts to retain claimant 
 
         as an employee after an injury and to accommodate medical 
 
         restrictions resulting therefrom reduces the amount of claimant's 
 
         industrial disability.  Claimant is earning more money  now  than 
 
         she was earning at the time of her injury.  Claimant's  
 
         intellectual ability appears to this deputy to be above average; 
 
         claimant has completed high school, graduated from cosmetology 
 
         school and regularly completes continuing education requirements 
 
         for her current position.  Claimant's personality is particularly 
 
         well suited for this employment.
 
         
 
              Prior to her medical appointment just before hearing, 
 
         claimant has not sought or received any medical treatment for 
 
         some eighteen months.  Claimant does not currently take any 
 
         medication on a regular basis.  However, Dr. Kelly, her family 
 
         physician, has opined that claimant would continue to have 
 
         periodic flare-ups of pain and strain.  Although claimant had 
 
         some prior back problems, they clearly did not interfere with her 
 
         ability to perform her job and she otherwise had a scant medical 
 
         history.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Industrial disability can be less than equal to a greater 
 
         than functional impairment.  Birmingham v. Firestone Tire & 
 
         Rubber Company, II Iowa Industrial Commissioner Report 39  
 
         (Appeal Decision 1981). Considering then all the elements of 
 
         industrial disability enumerated above, it is found that claimant 
 
         sustained a permanent partial disability of 5 percent for 
 
         industrial purposes thereby entitling her to 25 weeks of 
 
         permanent partial disability benefits.
 
         
 
              The final issue presented for resolution is the extent of 
 
         claimants entitlement to certain medical benefits under Iowa Code 
 
         section 85.27.  That section of the law provides:
 
         
 
                The employer, for all injuries compensable under
 
              this chapter or chapter 85A, shall furnish reasonable
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 12
 
         
 
         
 
              surgical, medical, dental, osteopathic, chiropractic,
 
              podiatric, physical rehabilitation, nursing, ambulance
 
              and hospital services and supplies therefor and shall
 
              allow reasonably necessary transportation expenses
 
              incurred for such services.
 
         
 
              The parties list the following disputed medical expenses:
 
         
 
              1.  Unpaid - Back Rehabilitation Clinics of America -
 
         Exhibit 2 - $3,165.00.
 
         
 
              2.  Unpaid - Iowa Lakes Orthopaedics, P.C. - Exhibit 3 -
 
         $28.70.
 
         
 
               3. Unpaid - Spencer Medical  Associates,  P.C.  -  Exhibit 
 
         9
 
         (page 6A) -  $22.00.
 
         
 
              4.  Paid by.claimant - Iowa Lakes Orthopaedics, P.C.
 
         Exhibit 10 - $123.40.
 
         
 
              There is no dispute that defendants authorized the care of 
 
         Dr. Donohue and that all the charges submitted to defendant 
 
         insurance carrier for treatment rendered by Dr. Donohue have been 
 
         paid according to defendants' counsel at the time of hearing.  It 
 
         was not until approximately July of 1987 that defendants advised 
 
         claimant that a physician other than Dr. Donohue was designated 
 
         to provide her care.  Dr. Donohue, defendants' authorized 
 
         physician, recommended claimant attend the Back Rehabilitation 
 
         Clinic.  Defendants shall be found liable for the expenses 
 
         incurred therewith.  Not only would this treatment be found to be 
 
         authorized, but the record would establish that the treatment did 
 
         help claimant in recovering from her injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As indicated above, defendants' counsel acknowledged at the 
 
         time of hearing that all of Dr. Donohue's charges have been paid 
 
         in full and that his charges are not in dispute.  Item No. 2 on 
 
         the list of disputed medical expenses is thus found to be 
 
         defendants' responsibility.
 
         
 
              Claimant was aware Dr. Kelly was not designated by 
 
         defendants as the authorized treating physician.  Claimant's 
 
         election to see Dr. Kelly on September 20, 1989 would ordinarily 
 
         be considered unauthorized.  However, Dr. Donohue testified that 
 
         he told her unless it was an emergency in nature, he would 
 
         recommend that she see her family doctor, Dr. Kelly in Spencer.  
 
         Therefore, defendants shall be liable for the expenses incurred 
 
         with Dr. Kelly for the treatment rendered on that day.
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 13
 
         
 
         
 
                                 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 her employment on January 21, 1986.
 
         
 
              2.  The claimant's work injury of January 21, 1986 is the 
 
         cause of the disability on which she now bases her claim.
 
         
 
              3.  Claimant has sustained an industrial disability to the 
 
         body as a whole as a result of the injury of January 21, 1986.
 
         
 
              4.  Claimant is 37 years old, a high school graduate who 
 
         completed a cosmetology course and used her cosmetology training 
 
         for approximately one year.
 
         
 
              5.  Claimant has prior work experience working road 
 
         construction and as a housekeeper with her current employer.
 
         
 
              6.  Claimant is currently employed as the activities 
 
         counselor and admissions coordinator for defendant employer and 
 
         is currently earning more money per hour now than she was earning 
 
         at the time of her injury.
 
         
 
              7.  Claimant has been able to maintain her employment 
 
         notwithstanding her injury and the employer has been generous in 
 
         accommodating claimant's restrictions.
 
         
 
              8.  Claimant has a permanent partial impairment to the body 
 
         as a whole of 5 percent as a result of the injury of January 21, 
 
         1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              9.  Claimant has restrictions on her employability but those 
 
         restrictions do not preclude her from engaging in much of the 
 
         work for which she is fitted by education and experience.
 
         
 
              10.  Claimant is well motivated to maintain her employment.
 
         
 
              11.  Claimant has sustained a permanent partial disability 
 
         of 5 percent for industrial purposes.
 
         
 
              12.  Claimant is entitled to payment of all disputed medical 
 
         expenses.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on all of the principles of law previously
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 14
 
         
 
         
 
         stated, the following conclusions of law are made:
 
         
 
              1. Claimant has established that the work injury of January 
 
         21, 1986 is the cause of the disability on which she bases her 
 
         claim.
 
         
 
              2. Claimant has established a permanent partial disability 
 
         of 5 percent to the body as a whole as a result of the work 
 
         injury of January 21, 1986.
 
         
 
              3. Claimant has established entitlement to the disputed 
 
         medical expenses listed as an attachment to the prehearing report 
 
         and order.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant twenty-five (25) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         one hundred thirty and 28/100 dollars ($130.28) per week 
 
         commencing September 12, 1986.
 
         
 
              Defendants shall pay all disputed medical expenses as found 
 
         in the attachment to the prehearing report and order.
 
         
 
              Defendants shall receive credit for all disability benefits 
 
         previously paid.
 
         
 
              Benefits that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon 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.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
              Signed and filed this 18th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         McMillan v. Hill Top Care Center
 
         Page 15
 
         
 
         
 
         Copies to:
 
         
 
         Mr David A Scott
 
         Attorney at Law
 
         407 Grand Ave
 
         P 0 Box 3046
 
         Spencer IA 51301
 
         
 
         Mr Maynard M Mohn
 
         Attorney at Law
 
         121 N Sixth St
 
         Estherville IA 51334
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51803
 
                                         Filed January 18, 1990
 
                                         Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE D. McMILLAN,
 
         
 
               Claimant,
 
         
 
         VS.                                          File No. 820584
 
         
 
         HILL TOP CARE CENTER,                     A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         IOWA HEALTH CARE ASSOCIATION/
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51803
 
         
 
              Claimant, 37, with 5% permanent partial impairment found to 
 
         have 5% permdnent partial disability where she returned to her 
 
         regular job, was making more money, had assistants to help her, 
 
         the employer made accommodations for her inJury, was well 
 
         motivated, received regular advanced training and her 
 
         restrictions did not prohibit her from doing much of the work for 
 
         which she is fit by education and  experience.