BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        DUANE ARNHOLD,
 
        
 
            Claimant                             File Nos. 825923
 
                                                            861959
 
        vs.
 
                                               A R B I T R A T I O N
 
        CITY OF DES MOINES,
 
                                                  D E C I S I O N
 
            Employer,
 
            Self-Insured,
 
            Defendant..                             F I L E D
 
        
 
                                                   N O V 30 1989
 
        
 
                                                INDUSTRIAL SERVICES
 
        
 
        
 
                                  INTRODUCTION
 
        
 
            This is a proceeding in arbitration brought by Duane 
 
        Arnhold, claimant, against City of Des Moines, employer and 
 
        self-insured defendant, for benefits as the result of an injury 
 
        to the back and neck on February 25, 1986 (file no. 861959) and 
 
        another injury to the back and neck on June 9, 1986 (file no. 
 
        825923). A hearing was held in Des Moines, Iowa, on January 24, 
 
        1989, and the case was fully submitted at the close of the 
 
        hearing. The records consist of the testimony of Duane Arnhold, 
 
        claimant; Michael E. Peterson, workers' compensation 
 
        administrator; joint exhibits 1 through 4 and proposed claimant's 
 
        exhibits A and B. The admissibility of claimant's exhibits A and 
 
        B is to be ruled upon in this decision. A transcript of the 
 
        hearing was ordered by the deputy. Both attorneys submitted 
 
        excellent posthearing briefs.
 
        
 
                                   STIPULATIONS
 
        
 
            The parties stipulated to the following matters at the 
 
        hearing:
 
        
 
            As to both the injury of February 25, 1986 and the injury of 
 
        June 9, 1986, the parties stipulated:
 
        
 
            That an employer-employee relationship existed between 
 
        claimant and employer at the time of both injuries.
 
        
 
            That claimant did sustain an injury on February 25, 1986 and 
 
        again on June 9, 1986, which arose out of and in the course of 
 
        employment with employer.
 
        
 
            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.
 
        
 
            That the commencement date for permanent disability 
 
        benefits, if such benefits are awarded, is May 19, 1987.
 
        
 
            That the rate of compensation, in the event of an award, is 
 
        $263.24.
 
        
 

 
        
 
 
 
 
 
            That medical benefits are no longer in dispute.
 
        
 
            That defendant claims no credit for workers' compensation 
 
        permanent disability benefits paid prior to hearing.
 
        
 
            That there are no bifurcated claims.
 
        
 
            As to the injury of February 25, 1986, the parties 
 
        stipulated that claimant lost no time from work, no temporary 
 
        disability benefits were paid and claimant's entitlement to 
 
        temporary disability benefits was not a disputed matter in this 
 
        case at this time.
 
        
 
            As to the injury of June 9, 1986, the parties stipulated 
 
        that claimant was paid 1 1/7 weeks of temporary workers' 
 
        compensation benefits prior to hearing and that entitlement to 
 
        additional temporary disability benefits is not a disputed matter 
 
        in this case at this time.
 
        
 
                                      ISSUES
 
        
 
            The parties submitted the following issues for determination 
 
        at the time of the hearing.
 
        
 
            Whether the injury of February 25, 1986 or the injury of 
 
        June 9, 1986 was the cause of permanent disability.
 
        
 
            Whether claimant is entitled to permanent disability 
 
        benefits as the result of the injury of February 25, 1986 or the 
 
        injury of June 9, 1986, and if so, the nature and extent of 
 
        benefits.
 
        
 
                                 PRELIMINARY MATTERS
 
        
 
            Defendant objected to claimant's proposed exhibits A and B. 
 
        The hearing deputy reserved ruling on these two objections until 
 
        the decision of the case. The deputy, after considering the 
 
        arguments of both attorneys on both exhibits, now rules as 
 
        follows on these two objections:
 
        
 
            Defendant objected to claimant's proposed exhibit A for the 
 
        reason it was not served 15 days prior to hearing pursuant to 
 
        paragraph six of the hearing assignment order. Claimant admitted 
 
        it had not been served. Therefore, defendant's objection to 
 
        claimant's exhibit A is sustained. Claimant's exhibit A is not 
 
        admitted into evidence and will not be considered in the 
 
        determination of this case. It will remain with the record for 
 
        purposes of appeal.
 
        
 
            Defendant objected to claimant's proposed exhibit B for the 
 
        same reason. Claimant contended it was rebuttal to the testimony 
 
        of Michael Edward Peterson. Claimant's exhibit B is admitted 
 
        into evidence over the objection of defendant.
 
        
 
                             SUMMARY OF THE EVIDENCE
 
        
 
            Claimant, age 51, completed the sixth grade and later 
 
        obtained a G.E.D. certificate in 1955 while in the army. 
 
        Claimant served in the army from 1954 to 1957 as a tank operator, 
 
        tank gunner and tank mechanic. He then served in the navy from 
 
        1958 until 1962 as a boiler tender and machinist mate. Claimant 
 
        also completed a one year course of industrial maintenance which 
 
        entailed the operation of boilers and air conditioners and 
 
        operation and repair of heating and cooling systems. He received 
 
        a certificate and obtained a Minnesota stationary engineer's 
 
        license. He also holds a first class operating engineer's 
 

 
        
 
 
 
 
 
        license for the city of Des Moines. Past employments include 
 
        farming and factory work. He was self-employed as a tree trimmer 
 
        and also as a service station operator and automotive repairman. 
 
        He performed stationary engineer work various places operating, 
 
        repairing and maintaining heating and cooling systems. A two 
 
        page, 26 point list of his skills is in evidence (exhibit 4, 
 
        pages 92 & 93; transcript page 70). In his past employments he 
 
        lifted up to 100 and 150 pounds. Claimant performed duties as an 
 
        equipment operator for employer and as a stationary engineer. At 
 
        the time of these injuries, claimant was custodial supervisor for 
 
        the convention center setting up and tearing down the facilities 
 
        needed by the various users or exhibitors for meetings, dinners, 
 
        dances and exhibitions. He supervises anywhere from one to 
 
        twelve employees. It is hard work. He might move 50,000 to 
 
        60,000 pounds of weight to build a set or set up 2,000 chairs in 
 
        very short periods of time. He works with staging risers, wall 
 
        panels and tables which weigh up to 100 pounds or more. He is 
 
        also responsible for the safety and security of his workers and 
 
        customers during his shift from 3:00 p.m. until 12:00 a.m. 
 
        Claimant testified that prior to these two injuries he could 
 
        perform all of the physical aspects of his job without 
 
        difficulty.
 
        
 
            Prior to the two injuries under consideration claimant was 
 
        injured in a nonwork-related automobile accident on November 26, 
 
        1985. The injuries were to his neck and left arm. Claimant 
 
        eventually received a $20,000 settlement for this accident which 
 
        included property damage on his automobile, lost wages, medical 
 
        expenses and other out of pocket expenses.
 
        
 
            Then on February 25, 1986, claimant was injured in a 
 
        work-related automobile accident. Claimant was enroute to C.P.R. 
 
        class when his vehicle was rear ended by another vehicle. This 
 
        accident injured his midback and his right arm became numb and he 
 
        dropped things. He was examined after this accident at Lutheran 
 
        Hospital and has been treated by Kelly Bast, M.D., for this 
 
        injury. Claimant said he reported this injury to employer from 
 
        the hospital and then went home, went to bed for three days and 
 
        then returned to work (tr. p. 50). Claimant contended that the 
 
        back pain from this injury has never gone away (tr. p. 54). The 
 
        parties stipulated that claimant is not entitled to any temporary 
 
        disability benefits for this injury.
 
        
 
            Claimant was injured again while working at the convention 
 
        center on June 9, 1986, while setting wall panels. While pushing 
 
        a wall panel, his feet slipped out from underneath him, his chest 
 
        crashed into the side of the wall panel and he fell down on his 
 
        left shoulder on the floor. This accident injured his midback 
 
        again and right leg. Claimant tried to work on June 10, 1986 and 
 
        June 11, 1986, but had so much trouble that he eventually 
 
        reported to the employee health clinic on June 12, 1986 (ex. 2).
 
        
 
            Claimant testified that prior to these injuries he had 
 
        always been very strong and durable. He prided himself on his 
 
        strength and stamina. He said these injuries had a bad effect on 
 
        his diabetes and he found it difficult to eat, sleep or 
 
        concentrate. Claimant said he has not improved since these 
 
        accidents. He has to be very careful about lifting, pushing and 
 
        pulling. When he is tired, his left toe catches in the carpet at 
 
        home when he walks. He suffers from diabetes, irregular heart 
 
        beat, a slightly enlarged heart and wears glasses. He felt he 
 
        had recovered from his neck and left arm complaints from the off 
 
        duty nonwork-related auto accident that occurred on November 26, 
 
        1985. However, the pain in his midback from the two work 
 
        injuries has never gone away. Claimant said he can still 
 
        supervise, but finds it difficult to perform the manual labor 
 

 
        
 
 
 
 
 
        tasks involved in his job. However, he has not reported to any of 
 
        his superiors that he is no longer capable of performing the 
 
        duties of his job of custodial services supervisor (tr. pp. 78 & 
 
        79).
 
        
 
            Defense counsel demonstrated to claimant that on December 3, 
 
        1985, he reported midback and midchest pain prior to these work 
 
        injuries (ex. 1, p. 59). Also, that he was having numbness and 
 
        dropping things with his left hand on February 20, 1986 (ex. 1, 
 
        p. 59). Both of these doctor notes preceded the two work 
 
        injuries under consideration in this case. She also demonstrated 
 
        to claimant that he complained of left arm and hand complaints 
 
        after the February 25, 1986 car accident, but that he testified 
 
        this accident affected his right arm (tr. p. 85; ex. 1, p. 45). 
 
        Claimant could not explain why Dr. Bast's notes did not record 
 
        the automobile accident of February 25, 1986 and his complaints 
 
        as a result of that accident until November 12, 1986 and then 
 
        only cursorily when Dr. Bast's notes did reflect the automobile 
 
        accident of November 26, 1985 in quite some detail (tr. pp. 
 
        87-90).
 
        
 
            Defense counsel demonstrated that Dr. Bast thought 
 
        claimant's complaints were due to the auto accident of November 
 
        26, 1985 (tr. p. 108).
 
        
 
            Claimant conceded that he has been doing his same job for 
 
        the same salary for two years since these injuries, but he no 
 
        longer lifts and twists (tr. pp. 103, 130, 131). Claimant said 
 
        he has not applied for employment with any other employers (tr. 
 
        p. 104). Dr. Bast's notes showed claimant had delegated more of 
 
        his duties to subordinates (tr. p. 105).
 
        
 
            Michael Edward Peterson testified that he is the safety 
 
        director for the city of Des Moines. He said employees are to 
 
        report accidents immediately and seek treatment from the employee 
 
        health clinic. He testified that claimant never has formally 
 
        reported an injury as a result of the automobile accident of 
 
        February 25, 1986 to the city and has never sought treatment for 
 
        it at the employee health clinic. He added that claimant never 
 
        contacted him for approval of any treatment for this accident. 
 
        Claimant did, however, report the automobile accident to his 
 
        supervisor within 24 hours of when it happened (tr. pp. 110, 
 
        114).
 
        
 
            Peterson testified that the injury of June 9, 1986, was 
 
        reported to the city, an injury report was completed and claimant 
 
        was treated by the employee health clinic. The witness related 
 
        that neither the clinic nor claimant ever communicated to him 
 
        that claimant was unable to portions of his work. He said 
 
        claimant has never requested a job transfer because he could not 
 
        perform portions of his work (tr. pp. 109-113). Peterson agreed 
 
        that the supervisors do not always report everything to him that 
 
        the employees report to them.
 
        
 
        Claimant testified that he was often required to work long hours; 
 
        and to work 7, 14 and 21 days in a row without a day off, in 
 
        spite of the restrictions from the doctor that claimant was not 
 
        to work overtime, lift repetitively, and not lift over 30 pounds. 
 
        Peterson said he was aware of the restrictions, but he was not 
 
        aware of what hours and days that claimant was required to work. 
 
        At this point, claimant offered claimant's exhibit B which shows 
 
        his hours and days of work from January 12, 1987 to May 10, 1987. 
 
        It was claimant's contention that working the long hours and 
 
        lengthy days without a day off caused his injuries to become 
 
        permanent (tr. p. 124).
 
        
 

 
        
 
 
 
 
 
            The city of Des Moines police report for the accident of 
 
        November 26, 1985, shows claimant as being injured (ex. 2, p. 1). 
 
        Dr. Bast indicates that he saw claimant at Methodist Hospital 
 
        emergency room for weakness of the arm and fingers (ex. 1, p. 
 
        59). On December 3, 1985, Dr. Bast diagnosed posttraumatic 
 
        radiculopathy involving the C-7 and 8 nerve root distribution 
 
        (ex. 1, p. 59). On December 1, 1985, Dr. Bast noted claimant had 
 
        midchest and midback complaints. He diagnosed that claimant had 
 
        thoracic spondylosis causing radiculopathy and chest pain (ex. 1, 
 
        p. 59). On February 20, 1985, Dr. Bast recorded left arm 
 
        discomfort with weakness of the left hand, numbness is present 
 
        sometimes, he drops things. His diagnosis was left arm 
 
        radiculopathy from probably cervical spondylosis (ex. 1, pp. 5, 
 
        58, & 59). All of these symptoms were diagnosed and being 
 
        treated prior to the work-related automobile accident of February 
 
        25, 1986.
 
        
 
            Dr. Bast sent claimant to David J. Boarini, M.D., for 
 
        consultation on March 11, 1986, and claimant saw Dr. Boarini on 
 
        March 17, 1986. Dr. Boarini found that claimant had a diffuse 
 
        plexus injury to the left arm. His cervical spine showed some 
 
        degenerative arthritis. Pain in his left heel was thought to be 
 
        an early sign of his diabetic polyneuropathy. An EMG on February 
 
        26, 1986 was negative. Dr. Boarini concluded, "At this point, I 
 
        don't think we need to do anything more except to follow him." 
 
        (ex. 1, p. 60). It should be noted that the EMG and Dr. 
 
        Boarini's examination all took place after the work-related 
 
        automobile accident at this point in time, but that accident is 
 
        not mentioned in his report (ex. 1, pp. 58061). It should be 
 
        noted that the EMG and Dr. Boarini's examination all took place 
 
        after the work-related automobile accident at this point in time, 
 
        but that accident is not mentioned in his report (ex. 1, pp. 
 
        58-61).
 
        
 
            On Tuesday, May 20, 1986, Dr. Bast's treatment shifts from 
 
        the cervical area and the left arm to the thoracic area and the 
 
        right arm, but still there is no mention of the work-related 
 
        accident that occurred on February 25, 1986. On the contrary, 
 
        Dr. Bast recorded; (1) posttraumatic myofascitis of the spine, 
 
        probably permanent concerning the length of time this problem has 
 
        persisted from November 26, 1985 and (2) paresthesias of the 
 
        right arm, exact etiology unknown. Dr. Bast stated he was 
 
        considering whether the underlying neuropathy was "diabetic vs. 
 
        posttraumatic." (ex. 1, p. 58). On May 23, 1986, Dr. Bast noted 
 
        that a TENS unit was improving his symptoms since the car 
 
        accident (ex. 1, p. 57).
 
        
 
            On June 19, 1986, Dr. Bast recorded the injury of June 9, 
 
        1986, while moving panels, but his diagnosis changed without 
 
        explanation to low back strain (ex. 1, p. 57).
 
        
 
            Dr. Bast did not see claimant from June 11, 1986 until 
 
        October 7, 1986, when he stated "normal examination except for 
 
        obesity", and indicated other doctors were now treating 
 
        claimant's persistent back pains (ex. 1, p. 56). It wasn't until 
 
        November 12, 1986, that Dr. Bast made a brief pencil note in his 
 
        records which states "soreness and stiffness in back-MVA last 
 
        Feb."..Also on November 12, 1986, the doctor commented that 
 
        considering the length of time elapsed that low back syndrome may 
 
        become a permanent problem (ex. 1, p. 56). Dr. Bast last saw 
 
        claimant on February 1, 1988 and concluded: (1) diabetes 
 
        mellitus type II, (2) hypertension; (3) previous back injury 
 
        consistent with compression fractures of T12 and (4) decreased 
 
        range of motion of the right hip which was questionably arthritis 
 
        in the right hip versus radiculopathy causing increased pain on 
 
        rotation of the hip (ex. 1, p. 55).
 

 
        
 
 
 
 
 
        
 
            The Lutheran Hospital Emergency Department recorded that 
 
        claimant was seen there on February 25, 1986, shortly after his 
 
        automobile accident on that date, with pain in his back between 
 
        his shoulder blades and numbness in his left arm and hand. He 
 
        was diagnosed with sustaining thoracic and cervical myofascial 
 
        strain and paresthesias and hypesthesias of the left arm. He was 
 
        instructed to rest, take aspirin for pain and to see K. 
 
        Cunningham, M.D., if he was not improved in two or three days.  
 
        X-rays of the cervical and thoracic spine were negative except 
 
        for degeneration (ex. 1, p. 45). The x-ray report itself 
 
        indicates the cervical spine is negative, but the thoracic spine 
 
        showed slight anterior wedging of the body of T12 and 
 
        hypertrophic and degenerative changes of the lower thoracic 
 
        spine, not acute (ex. 1, p. 46). There is no evidence that 
 
        claimant saw Dr. Cunningham or anyone else for followup treatment 
 
        after this injury.
 
        
 
            Claimant did receive extensive treatment from various 
 
        doctors at the city health clinic after the injury of June 9, 
 
        1986, extensive physical therapy and a consultation with Senesio 
 
        Misol, M.D., an orthopedic surgeon. After visits to the city 
 
        health clinic on June 12, 1986 and June 13, 1986, Ken 
 
        Schulthesis, D.O., diagnosed that claimant was locally tender 
 
        with spasm at the right middorsal spine (ex. 1, p. 2).
 
        
 
            Claimant was off work from June 12, 1986 to June 20, 1986 
 
        (one week and one day) and then returned to supervisory work only 
 
        starting on Monday, June 23, 1986 (ex. 1, p. 7). The physical 
 
        therapist started claimant on Williams Flexion Exercises and a 
 
        weight reduction program. He weighed 230 pounds and the goal was 
 
        to reduce to 180 pounds (ex. 1, p. 8). Thoracic spine x-rays 
 
        demonstrated degenerative changes at T8-9, 9-10 and 10-11. The 
 
        transverse process of L-1 had an appearance compatible with a 
 
        fracture of indeterminate age which might represent a remote 
 
        injury. The impression stated, "(1) except for mild degenerative 
 
        changes of lower thoracic spine, essentially normal thoracic 
 
        spine, (2) probable fracture of transverse process of L-1 on the 
 
        left, age indeterminate" (ex. 1, p. 12). A bone scan on July 7, 
 
        1986 was recorded as showing, "minimal scattered degenerative 
 
        changes. No evidence to suggest acute process particularly @ L1 
 
        level - Dr. Henderson" (ex. 1, p. 13). Vik Wall, M.D., noted on 
 
        July 16, 1986, that claimant related his back problems to moving 
 
        the wall panels. Claimant notes the automobile accident of last 
 
        year, but this is the first time he hasn't felt well." (ex. 1, 
 
        p. 13).
 
        
 
            On August 29, 1986, James Blessman, M.D., noted claimant's 
 
        conflicts with his supervisors and recorded, "Anger and hostility 
 
        almost more of a problem now than back strain." (ex. 1, p. 16). 
 
        On September 8, 1986, Dr. Blessman recorded claimant was to work 
 
        on light duty with restrictions of no lifting over 30 pounds, no 
 
        repetitive lifting and no overtime (ex. 1, p. 18).
 
        
 
            Dr. Misol saw claimant on September 17, 1986 and reported 
 
        claimant gave a history of moving the wall panels for his 
 
        problems rather than the automobile accident of February of 1986 
 
        (ex. 1, p. 21). On September 29, 1986, Dr. Misol reported that 
 
        an EMG was normal and the patient continued to work. He 
 
        described an unhappy job situation and concluded as follows:
 
        
 
             We will arrange for outpatient CAT scanning. I told Mr. 
 
             Arnhold that no matter what it shows, I think we had better 
 
             solve his work situation. It sounds like he had better be 
 
             working for another job and that I will not do any surgery 
 
             until this is the case because I am pretty sure that even 
 

 
        
 
 
 
 
 
             after the surgery he is not going to be able to work six or 
 
             seven days a week and do bending and lifting like he is 
 
             required to do.
 
        
 
        (ex. 1, p. 24)
 
        
 
            The CT examination on October 2, 1986 from L3 through S1 
 
        showed the L3-4, L4-5 and L5-S1 spaces were normal. There was 
 
        evidence of minimal facet joint arthropathy, but no evidence of 
 
        foraminal narrowing or subarticular narrowing. The impression 
 
        was no evidence of disc degeneration, minimal facet joint 
 
        arthropathy (ex. 1, p. 26). Dr. Misol dictated a followup report 
 
        on October 10, 1986 in which he stated CT scan and x-rays failed 
 
        to reveal evidence of permanent damage. He said claimant was 
 
        released, discharged and able to return to work (ex. 1, p. 27).
 
        
 
            A second CT scan on November 18, 1986, of the thoracic spine 
 
        showed no evidence of a bulging disc at any level, no pathologic 
 
        bone lesions, no evidence of extradural defect deforming the 
 
        thecal sac. The scan did show a slight compression fracture of 
 
        the T12 vertebral body. The radiologist was unable to 
 
        distinguish between an L1 transverse process fracture, remote, 
 
        versus a hypoplastic transverse process and rib (ex. 1, p. 31).
 
        
 
            Claimant was allowed to continue to work light duty with the 
 
        restrictions even though Dr. Misol said he could return to work. 
 
        Dr. Misol saw claimant again on May 5, 1987. On this occasion, 
 
        Dr. Misol interpreted that claimant attributed his back problems 
 
        to the automobile accident on February 25, 1986, rather than 
 
        pushing the walls on June 9, 1986. He recommended that claimant 
 
        would benefit from having weekends off. Dr. Misol concluded as 
 
        follows:
 
        
 
             Any how, this does not appear to be an orthopedic surgery 
 
             problem whatsoever, rather something that he has to work on 
 
             the job with his supervisor, again patient would like to 
 
             have some time off. He thinks that he is being forced to 
 
             work so many hours to make it difficult enough that he has 
 
             to quit. 
 
             I have not scheduled any follow up appointments.
 
             
 
        (ex. 1, p. 39)
 
        
 
             Dr. Blessman then required claimant to return to work on May 
 
             11, 1987 with no restrictions (ex. 1, p. 40).
 
             
 
             Dr. Blessman made a written report on May 19, 1987 to 
 
             Peterson in which he summarized claimant's injury and the care 
 
             and treatment that claimant had received for it. Dr. Blessman 
 
             concluded, "At this time it appears that he has reached the point 
 
             of maximum improvement. It is my opinion that there is no 
 
             permanency involved in the above-mentioned medical problems." 
 
             (ex. p. 43).
 
             
 
             On April 6, 1988, Ronald K. Bunten, M.D., reported to 
 
             claimant's counsel as follows:
 
             
 
             I believe Mr. Arnhold has degenerative disc disease in his 
 
             low dorsal spine, and that this became symptomatic after 
 
             aggravations sustained in accidents of February 25, 1986 and 
 
             June 9, 1986 while working. I believe he has reached a 
 
             steady state and has a 10% permanent partial impairment of 
 
             his total body function based on the condition of his spine. 
 
             I would assign 5% of this impairment to the aggravations of 
 
             these work-related incidents.
 
             
 

 
        
 
 
 
 
 
        (ex. 1, p. 64)
 
        
 
             There is evidence that claimant was involved in still a 
 
             third automobile accident, this one not work related, on 
 
             July 17, 1987. The police report does not show the claimant 
 
             to be injured and there is no other evidence that he was 
 
             injured or sought medical treatment as a result of this 
 
             accident (ex. 2, pp. 8 & 9).
 
             
 
                           APPLICABLE LAW AND ANALYSIS
 
             
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injuries of February 25, 1985 and June 9, 
 
             1986 are causally related to the disability on which he now bases 
 
             his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
             (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
             (1945). A possibility is insufficient; a probability is 
 
             necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
             691, 73 N.W.2d 732 (1955). The question of causal connection is 
 
             essentially within the domain of expert testimony. Bradshaw v. 
 
             Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
             
 
             However, expert medical evidence must be considered with all 
 
             other evidence introduced bearing on the causal connection. Burt, 
 
             247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be 
 
             couched in definite, positive or unequivocal language. Sondag v. 
 
             Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert 
 
             opinion may be accepted or rejected, in whole or in part, by the 
 
             trier of fact. Id. at 907. Further, the weight to be given to 
 
             such an opinion is for the finder of fact, and that may be 
 
             affected by the completeness of the premise given the expert and 
 
             other surrounding circumstances. Bodish, 257 Iowa 516, 133 
 
             N.W.2d 867. See also Musselman v. Central Telephone Co., 261 
 
             Iowa 352, 154 N.W.2d 128 (1967).
 
             
 
             While a claimant is not entitled to compensation for the 
 
             results of a preexisting injury or disease, the mere existence at 
 
             the time of a subsequent injury is not a defense. Rose v. John 
 
             Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 
 
             (1956). If the claimant had a preexisting condition or 
 
             disability that is aggravated, accelerated, worsened or lighted 
 
             up so that it results in disability, claimant is entitled to 
 
             recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
             N.W.2d 812, 815 (1962).
 
             
 
             As 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 impairment is an element to be considered in 
 
             determining industrial disability which is the reduction of 
 
             earning capacity, but consideration must also be given to the 
 
             injured employee's age, education, qualifications, experience and 
 
             inability to engage in employment for which he is fitted. Olson 
 
             v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
             257 (1963).
 
             
 
             Claimant has sustained the burden of proof by a 
 
             preponderance of the evidence that he sustained a permanent 
 
             injury which was caused by or aggravated by the accidents that 
 

 
        
 
 
 
 
 
             occurred on February 25, 1986 and June 9, 1986. It would appear, 
 
             however, that all or most of the permanency arises out of the 
 
             injury of June 9, 1986 for the reason that the only evidence of 
 
             record is that claimant was treated at Lutheran Hospital and 
 
             released as a result of the motor vehicle accident on February 
 
             25, 1986. Claimant said he stayed in bed three days at home and 
 
             then returned to work. There is no medical evidence of any 
 
             further treatment for this accident. Dr. Bast did not mention 
 
             this accident until November 12, 1986 and only cursorily. 
 
             Claimant was to see a Dr. K. Anderson if he had further 
 
             difficulty, but there is no evidence he ever saw Dr. K. Anderson.
 
                  
 
             Claimant saw Dr. Boarini after the February 25, 1986 
 
             accident and it is not mentioned in his report. For reasons 
 
             unknown, claimant resurrected it when he saw Dr. Misol on May 5, 
 
             1987, but Dr. Misol appeared to disregard claimant's allegation. 
 
             Dr. Wall recorded that claimant told him about an auto accident, 
 
             but said he felt well until the pushing walls accident on June 9, 
 
             1986 (ex. 1, p. 13). By comparison, claimant was treated 
 
             extensively for the injury of June 9, 1986 by the city health 
 
             clinic and its staff of doctors who were quite numerous. They 
 
             took his complaints seriously and extended him every possible 
 
             reasonable treatment medality. He received extensive physical 
 
             therapy and used a TENS unit He was seen by Dr. Bast and was 
 
             treated by him. Claimant was examined and evaluated by Dr. Misol 
 
             for the injury of June 9, 1986.
 
                  
 
             Even though from his records, there is no evidence that Dr. 
 
             Bast knew about the work-related auto accident of February 25, 
 
             1986 until November 12, 1986; and even though from his records it 
 
             appears that he treated claimant not only for the injuries to his 
 
             neck and left arm from the nonwork-related auto accident of 
 
             November 26, 1985, but also for the thoracic spine and right arm 
 
             problems from the pushing walls accident on June 9, 1986; and 
 
             even though he treated claimant for lumbar or low back pains of 
 
             unknown origin; Dr. Bast indicated that claimant had a permanent 
 
             injury because his complaints persisted so long. Dr. Bast's 
 
             testimony stands for the fact claimant may have sustained a 
 
             permanent injury, but his evidence is weakened by the fact that 
 
             he may not have had all of the facts and that he himself did not 
 
             know if the underlying neuropathy was diabetic or posttraumatic. 
 
             Dr. Bast did say on two occasions though that he felt claimant 
 
             had a permanent condition (ex. 1, pp. 56 & 58).
 
        
 
             Dr. Boarini did not see claimant after the injury of June 9, 
 
             1986 and furthermore, he did not address the point of permanency 
 
             in his one letter.
 
             
 
             Even though Dr. Misol did not find objective evidence of 
 
             injury and returned claimant to work, he, nevertheless, 
 
             recognized claimant's inability to continue to work six or seven 
 
             days a week and do the bending and lifting he is required to do. 
 
             He said that claimant had a work problem no matter what the 
 
             proposed CT scan showed. In other words, irrespective of what 
 
             objective tests were to reveal, and irrespective of whether 
 
             claimant had surgery for anything that the objective tests might 
 
             disclose, he said claimant was not able to do the job that he was 
 
             expected to do by employer. He attributed this to the injury of 
 
             pushing walls on June 9, 1986 by the history that he relied upon 
 
             (ex. 1, p. 29). So even though the x-rays and CT scan did not 
 
             show evidence of permanent damage (ex. 1, p. 27), Dr. Misol, 
 
             nevertheless, anticipated that claimant still had some impairment 
 
             that would make it unlikely that he could do his present job and 
 
             he recommended that claimant look for other work (ex. 1, pp. 29 & 
 
             30).
 
             
 

 
        
 
 
 
 
 
             Dr. Blessman, who is also an employee of the defendant 
 
             employer in this case, concluded that there was no permanency in 
 
             claimant's medical problem. Nevertheless, he provided claimant 
 
             with light duty work from September 8, 1986 until May 11, 1987, 
 
             with restrictions of either supervisory work only, or no 
 
             repetitive lifting, no lifting over 30 pounds and no overtime 
 
             work. Claimant testified to numerous bodily complaints. His 
 
             testimony might be considered to be subjective and also 
 
             self-serving, however, it enjoys some corroboration by the fact 
 
             employer's own physician and physicians felt that claimant should 
 
             work under these severe restrictions for almost a year after the 
 
             injury of June 9, 1986.
 
             
 
             At the same time, this is evidence that defendant's gave 
 
             claimant the benefit of the doubt, saw him and treated his 
 
             complaints at the city health clinic quite frequently, provided 
 
             him with extensive physical therapy, consultation with an 
 
             orthopedic surgeon on three occasions and all of the objective 
 
             tests that were recommended by the orthopedic specialist in 
 
             addition to all of the tests that defendant's doctors themselves 
 
             had ordered.
 
             
 
             Many of claimant's symptoms predated the two injuries that 
 
             defendant has admitted. The slight compression fracture of T12, 
 
             remote, and the possible deformity fracture of the transverse 
 
             process of L1 of undetermined date were not linked to the auto 
 
             accident injury of November 26, 1985, since there is no evidence 
 
             that claimant sustained any serious injury in the automobile 
 
             accident of February 25, 1986.
 
             
 
             It was established several times over that claimant has a 
 
             degenerative condition of the thoracic (dorsal) spine. It was 
 
             also suggested that claimant's diabetes mellitus II was or could 
 
             be the cause of polyneuropathy.
 
             
 
             In spite of the difficulties that claimant has had in 
 
             performing his job duties, and even though he has delegated 
 
             lifting and twisting tasks to subordinates, the fact remains that 
 
             he has been able to perform the same job in some manner at the 
 
             same pay ever since one week and one day after the injury of June 
 
             9, 1986.
 
             
 
             At the same time, if claimant were forced to seek new 
 
             employment, as he may well have to do, either because of his 
 
             physical condition or the amount of conflict that exists between 
 
             claimant and employer, the fact that claimant has sustained a 
 
             back injury and filed a litigated workers' compensation claim, 
 
             coupled with his age, education, diabetic condition, heart 
 
             condition, and hypertension condition will greatly reduce his 
 
             employability in the competitive labor market.
 
        
 
             Claimant appropriately cites Deputy Industrial Commissioner 
 
             Barry Moranville in the case of Hartwig v. Bishop Implement 
 
             Company, IV Iowa Industrial Commissioner Report 159 (Appeal 
 
             Decision June 28, 1984). In that case, claimant was 59 years old 
 
             and had two years of high school and some training in employer 
 
             sponsored schools. Deputy Moranville stated:
 
        
 
             ...His wages have not been lowered as a result of the 
 
             injury, and he continues to work for the employer. The 
 
             employer's testimony, quoted above, is taken to mean that 
 
             claimant's disability is tolerated well in his current 
 
             employment, but that does not mean any toleration would 
 
             transfer to another job. Claimant's present job situation, 
 
             then, is good but the elements of age, education and 
 
             impairment work against claimant's ability to compete in the 
 

 
        
 
 
 
 
 
             job marketplace....
 
             
 
             Claimant again aptly cites then Deputy Industrial 
 
             Commissioner David E. Linquist in the case of Todd v. Department 
 
             of General Services, Buildings and Grounds, IV Iowa Industrial 
 
             Commissioner Report 373 (1983). In that case, claimant had a 
 
             permanent functional impairment rating of 8 to 10 percent of the 
 
             body as a whole. Then Deputy Linquist wrote as follows:
 
        
 
                  Claimant is 59 years old and has an eighth grade 
 
                      education. Claimant's work life has been spent as a 
 
                      carpenter. As a result of his neck injury claimant has some 
 
                      restrictions. None of claimant's prior neck problems 
 
                      resulted in permanent impairment. Claimant also has other 
 
                      medical problems unrelated to this neck injury which may 
 
                      affect the length of time claimant will be able to work. 
 
                      The greater weight of evidence reveals that [sic] claimant 
 
                      has returned to the same job he had at the time of his 
 
                      injury, but his employer has allowed claimant to ease up on 
 
                      the work he performs and has limited his heavy work. This 
 
                      injury has not appeared to have affected claimant's ability 
 
                      to keep the job he presently has. Therefore, his actual 
 
                      earnings may not be reduced in proportion to his injury. On 
 
                      the other hand claimant would not find other new employers 
 
                      so gracious with his restrictions. Based on all the 
 
                      evidence presented it is determined that claimant has an 
 
                      industrial disability of fifteen percent as a result of his 
 
                      injury of December 17, 1980.
 
             
 
            There is evidence from Dr. Blessman and Dr. Misol that 
 
        conflicts between claimant and his supervisors may be as 
 
        influential on his physical condition as anything else. There is 
 
        evidence of a great deal of bitter dispute between claimant and 
 
        employer and his superiors. It is not the purpose of the 
 
        workers' compensation law to resolve these disputes no matter how 
 
        aggravated they may appear to be or to engage in any reward or 
 
        punishment for or against either party on account of them.
 
             
 
             Dr. Bunten, a reputable orthopedic surgeon, gave a balanced 
 
             opinion. He said that even though claimant had degenerative disc 
 
             disease in his low dorsal spine, it did not become symptomatic 
 
             until after the aggravations sustained on February 25, 1986, and 
 
             June 9, 1986. He found claimant had reached a steady state. He 
 
             said claimant had a 10 percent permanent partial impairment of 
 
             his total body function. He assigned 5 percent of this permanent 
 
             impairment to the aggravations of these two work-related 
 
             incidents (ex. 1, p. 64).
 
             
 
             Claimant is versatile. He performed skilled jobs in both 
 
             the army and the navy. He has earned a stationary engineer's 
 
             certificate and an operating engineer's license. He can operate, 
 
             repair and maintain automotive equipment, heating equipment and 
 
             cooling equipment.
 
             
 
             Claimant never received surgery and surgery was never 
 
             recommended or seriously considered by any of the physicians that 
 
             treated him.
 
             
 
             Wherefore, based upon the evidence presented, the foregoing 
 
             principles of law, all of the foregoing mentioned considerations, 
 
             all of the factors used to determine industrial disability, and 
 
             employing agency expertise [Iowa Administrative Procedure Act 
 
             17A.14(5)], it is determined that claimant has sustained a 10 
 
             percent industrial disability to the body as a whole.
 
             
 
                                 FINDINGS OF FACT
 

 
        
 
 
 
 
 
             
 
             Wherefore, based on the evidence presented the following 
 
             findings of fact are made.
 
             
 
             That Dr. Bunten testified that the injuries of February 25, 
 
             1986 and June 9, 1986 caused claimant's degenerative thoracic 
 
             spine disease to become symptomatic.
 
             
 
             That Dr. Bunten's opinion is the most balanced, reasonable 
 
             and reliable opinion in light of all of the evidence in the case.
 
        
 
             That Dr. Misol did not find any permanent impairment by 
 
             finding a degree of permanent functional impairment, but did find 
 
             that claimant should seek other work because irrespective of the 
 
             findings of objective tests, and irrespective of whether claimant 
 
             had surgery for anything the objective tests might reveal, he 
 
             believed that claimant was not able to perform the tasks required 
 
             by his employment or work the days and hours required by the 
 
             employment.
 
        
 
             That Dr. Blessman did not find any permanent functional 
 
             impairment, yet his handling of the case, as well as the handling 
 
             by the other city doctors, demonstrates that they considered 
 
             claimant suffered a very serious work-related injury.
 
        
 
            That Dr. Blessman, as an employee of the city health clinic, 
 
        was an employee of defendant employer as well as a treating 
 
        physician of claimant.
 
        
 
            That Dr. Bunten's view is the most factually correct, 
 
        balanced, reasonable and reliable view based on all of the 
 
        evidence.
 
        
 
            That claimant has sustained a 5 percent permanent functional 
 
        impairment of the body as a whole.
 
        
 
            That claimant is age 51, has a sixth grade education with a 
 
        G.E.D. obtained in the army and suffers from diabetes mellitus 
 
        II, heart condition, hypertension, slight compression fracture of 
 
        T12, and possible fracture deformity of the left L1 transverse 
 
        process.
 
        
 
            That claimant has returned to the same job at the same pay 
 
        and performed the work since one week and one day after the 
 
        injury of June 9, 1986, but worked under protective restrictions 
 
        for one year after the injury and claims that he delegates the 
 
        most strenuous parts of his tasks to subordinates now.
 
        
 
            That although claimant has been able to perform, in some 
 
        manner, the job he was performing at the time of these injuries 
 
        that claimant's employability in the competitive labor market is 
 
        reduced if he were forced to find new employment.
 
        
 
            That claimant has a wide and varied employment background 
 
        and that he has skills as an automotive repairman and as an 
 
        engineer.
 
        
 
            That claimant has sustained a 10 percent industrial 
 
        disability to the body as a whole.
 
        
 
                 .           CONCLUSIONS OF LAW
 
        
 
             Wherefore, based upon the evidence presented and the 
 
             foregoing principles of law, the following conclusions of law are 
 
             made:
 
        
 

 
        
 
 
 
 
 
            That the injuries of February 25, 1986 and June 9, 1986 were 
 
        the cause of permanent disability.
 
        
 
            That claimant has sustained an industrial disability of 10 
 
        percent to the body as a whole.
 
        
 
             That claimant is entitled to 50 weeks of permanent partial 
 
             disability benefits.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, IT IS ORDERED:
 
        
 
            That defendant pay to claimant fifty (50) weeks of permanent 
 
        partial disability benefits at the rate of Two Hundred 
 
        Sixty-three and 24/100 Dollars ($263.24) per week in the total 
 
        amount of Thirteen Thousand One Hundred Sixty-two Dollars 
 
        ($13,162) commencing on May 19, 1987 as stipulated to by the 
 
        parties.
 
        
 
            That defendant pay this amount in a lump sum.
 
        
 
            That interest will accrue pursuant to Iowa Code section 
 
        85.30.
 
        
 
            That defendant is charged with the costs of this action 
 
        pursuant to Division of Industrial Services Rule 343-4.33, 
 
        including the cost of the transcript of the hearing.
 
        
 
            That defendant file claim activity reports as requested by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1.
 
        
 
            Signed and filed this 30th day of November, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                      WALTER R. McMANUS, JR.
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Michael L. Jankins
 
        Attorney at Law
 
        2323 Grand Ave.
 
        Des Moines, Iowa 50312
 
        
 
        Ms. Anne Clarke
 
        Assistant City Attorney
 
        City Hall
 
        Des Moines, Iowa 50307
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                      1401; 1402.40; 1402.60; 1803;
 
                                      Filed November 30, 1989
 
                                      WALTER R. McMANUS, JR.
 
                                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                      
 
                                      
 
        DUANE ARNHOLD,
 
        
 
            Claimant,                            File Nos. 825923
 
                                                            861959
 
        vs.
 
                                                A R B I T R A T I O N
 
        CITY OF DES MOINES,
 
                                                   D E C I S I O N
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
        1402; 1402.40; 1402.60
 
        
 
             Claimant's testimony, report of employers' evaluating 
 
             physician and report of claimant's evaluating physician combined 
 
             to establish that these injuries were the cause of permanent 
 
             disability. Employer's evaluating physician found no permanent 
 
             impairment, but did find that claimant was not able to perform 
 
             the job duties that employer expected claimant to do. Claimant's 
 
             evaluating physician found permanent impairment because these 
 
             injuries caused claimant's degenerative back condition which was 
 
             dormant to become symptomatic.
 
        
 
        1803
 
        
 
             Employer's treating physician found no permanent impairment, 
 
             however, he was also an employee of defendant employer. 
 
             Employer's evaluating physician found no permanent impairment, 
 
             but said that the injuries prevented claimant from performing the 
 
             job that defendant expected him to do. Claimant's evaluating 
 
             physician determined that claimant's permanent impairment was 10 
 
             percent of the body as a whole, 5 percent of which was made 
 
             symptomatic by these injuries. Claimant did return to work a 
 
             week and one day after the second and most serious injury and 
 
             worked with restrictions of: (l) no lifting over 30 pounds; (2) 
 
             no repetitive lifting; and (3) no overtime work for a period of 
 
             one year and then performed the job after the restrictions were 
 
             lifted. Claimant contended he delegated the heavy work to 
 
             subordinates.
 
        
 
            It was found: (l) that claimant's tolerance to perform this 
 
        job was not necessarily transferable to other jobs in the 
 
        competitive labor market and (2) that claimant's earnings had not 
 
        been reduced in proportion to his injury. New employers might 
 
        not be so gracious with claimant's limitations of symptomatic 
 
        degenerative spine, diabetes mellitus II, heart condition, 
 
        hypertension, age of 51, and sixth grade education with G.E.D. 
 
        Claimant's injury was basically strain and spasm. Objective 
 
        tests were negative for disc injury. No surgery was performed, 
 
        recommended or even suggested. Claimant awarded 10 percent 
 
        industrial disability.
 

 
        
 
 
 
 
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH D. ARRICK,            :
 
                                          :
 
                 Claimant,                :      File No.  826544
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            GRIFFIN PIPE COMPANY,         :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Kenneth 
 
            D. Arrick, claimant, against Griffin Pipe Products Company, 
 
            employer and self-insured defendant, for benefits as the 
 
            result of an alleged injury which occurred on June 20, 1986.  
 
            A hearing was held in Council Bluffs, Iowa, on June 22, 
 
            1989, and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented Shelden M. Gallner.   
 
            Defendant was represented by W. Curtis Hewett.  The record 
 
            consists of the testimony of Kenneth D. Arrick, claimant; 
 
            Teri Arrick, claimant's wife; Bert W. Scott, Jr., 
 
            coemployee; John W. Greene, Jr., rehabilitation counselor; 
 
            Gene Maaske, claimant's witness; Erick Alverio, licensed 
 
            physical therapist; and Gary Lee Mace, claimant's rebuttal 
 
            witness; joint exhibits 1 through 87 and defendant's 
 
            exhibits 88 through 91.  With the prehearing report, 
 
            claimant submitted claimant's description of disputes; a 
 
            list of 13 medical expenses with bills attached; and a 
 
            statement of expenses with bills attached, which is 
 
            interpreted to be claimant's request for costs.  Defendant 
 
            submitted a description of disputes, a joint exhibit list, 
 
            defendant's objections to claimant's exhibits and an 
 
            affidavit for court costs for the deposition of Patrick 
 
            Bowman, M.D., in the amount of $900.  The deputy ordered a 
 
            transcript of the hearing.  Defendant's attorney submitted 
 
            an excellent posthearing brief.  Claimant's attorney did not 
 
            submit a posthearing brief.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that the alleged injury was the 
 
            cause of temporary disability during a period of recovery 
 
            and that the times off work for which claimant now seeks 
 
            temporary disability benefits is from June 20, 1986 to 
 
            February 4, 1988; and that the commencement date of 
 
            permanent partial disability benefits, in the even such 
 
            benefits are awarded, is February 4, 1988.
 
            
 
                                        
 
            
 
                                      issues
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on June 20, 1986, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits, and if so, the extent of benefits to 
 
            which claimant is entitled.
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did sustain an injury on 
 
            June 20, 1986, which arose out of and in the course of 
 
            employment with employer.  
 
            
 
                 Claimant testified that on June 20, 1986, he went up 
 
            some steps to shut off a valve, turned around, his feet went 
 
            out from under him and he went down on his buttocks 
 
            (transcript page 189).  More particularly, he testified that 
 
            he slipped on the top step, which was rough cement, and 
 
            slipped and fell on the steel grating steps below on his 
 
            buttocks (tr. p. 160).  He further testified that the rough 
 
            concrete and the steel steps were slippery from cement dust 
 
            which had gathered on them.  They appeared to be dry, but 
 
            were actually wet (tr. p. 65).  There were no eye witnesses, 
 
            however, Bert W. Scott, Jr., a coemployee, testified that 
 
            even though he did not witness the accident, he heard about 
 
            it that day (tr. pp. 29 & 36).  He further verified that the 
 
            area where claimant fell is slick and slippery from cement, 
 
            that it was slippery the day of the injury and that he 
 
            almost fell there the same day (tr. p. 39).  A photograph of 
 
            the rough cement and steel grating steps is in evidence (ex. 
 
            88).  
 
            
 
                 Teri Arrick, claimant's wife, testified that the 
 
            employer called her to report that her husband was injured 
 
            and was on the way to the hospital.  She met the ambulance 
 
            at the hospital and found him in severe pain (tr. p. 202).  
 
            
 
                 A medical information form completed by the office of 
 
            Ronald K. Miller, M.D., shows that claimant was injured on 
 
            June 20, 1986, and was first treated on that day by R. 
 
            Schuyler Gooding, M.D., on the same day at Mercy Hospital 
 
            from an injury where he fell down stairs (exhibit 26).  
 
            Claimant testified that he was taken by stretcher to the 
 
            front gate and then by ambulance to Mercy Hospital (tr. p. 
 
            67).  Claimant testified that Dr. Gooding transferred his 
 
            care to Patrick W. Bowman, M.D. (tr. p. 70; ex. 6).  
 
            
 
                 On September 24, 1986, Dr. Bowman recorded that the, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            "Patient fell at work down some stairs on 20 June 1986."  He 
 
            determined that claimant had a grade II spondylolisthesis of 
 
            L5 which had been present over the past three years with no 
 
            change based on previous x-ray studies.  He found that L5 
 
            was slipping forward on both L4 and S1 and, "[I]t's 
 
            literally being popped out between."  (ex. 5).  Even though 
 
            claimant had this condition, for at least three years prior 
 
            to this injury, and even though Dr. Gooding had performed a 
 
            previous partial L4, complete L5, and partial S1 
 
            decompressive laminectomy on January 14, 1985, for a prior 
 
            injury (ex. 30), nevertheless, Dr. Bowman, a board certified 
 
            orthopedic surgeon, testified that the injury of June 20, 
 
            1986, either aggravated or accelerated the preexisting 
 
            condition for which he treated claimant (ex. 87, p. 41).  
 
            Dr. Bowman's statement on causal connection of the 
 
            employment to the injury is not controverted, contradicted, 
 
            rebutted or refuted by any other opposing medical evidence.  
 
            
 
                 The statement of Dr. Gooding, on June 6, 1985, that 
 
            claimant's spondylolysis with spondylolisthesis was caused 
 
            50 percent by congenital abnormality, 35 percent by the type 
 
            of work which claimant performs and 15 percent by the fall 
 
            he encountered back on December 17, 1984 (ex. 31) is not 
 
            material.  After that injury, claimant was examined several 
 
            times by Dr. Gooding and Bernard L. Kratochvil, M.D., for a 
 
            second opinion and claimant was released to return to work 
 
            and did return to work on January 6, 1986.  Claimant 
 
            testified that he worked at his old job as a material 
 
            handler operating a fork lift truck without any medical 
 
            treatment and without any time off from work until this 
 
            injury occurred on June 20, 1986 (tr. pp. 63 & 189).  
 
            Claimant testified that he lifted stringers, stacked pipe, 
 
            operated the manual arm to dump hoppers, lifted small trucks 
 
            onto the fork truck and could climb into and out of large 
 
            and small trucks.   He added that he worked nine hours a day 
 
            sometimes, and some Saturdays, without any complaints of 
 
            back pain to employer and that he saw no doctors for 
 
            treatment during this period of time (tr. pp. 190 & 191).  
 
            Claimant's wife testified that he recovered well from the 
 
            injury which occurred on December 17, 1984 (tr. p. 206).
 
            
 
                 Claimant passed a preemployment physical examination 
 
            before the started to work for employer which included a 
 
            lumbar x-ray (tr. p. 51).
 
            
 
                 From the foregoing evidence, and from other evidence in 
 
            the record which contributes to this finding, it is 
 
            determined that claimant sustained an injury on June 20, 
 
            1986, which arose out of and in the course of employment 
 
            with employer when he slipped and fell on some steps at work 
 
            and injured his back.
 
            
 
                                        
 
            
 
              causal connection-entitlement-healing period benefits
 
            
 
                 The parties stipulated that the injury of June 20, 
 
            1986, was the cause of temporary disability; that the times 
 
            off work for which claimant now seeks healing period 
 
            benefits is from June 20, 1986 to February 4, 1988; and that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the commencement date for permanent partial disability is 
 
            February 4, 1988.  On February 4, 1988, Dr. Bowman stated, 
 
            "It is my opinion that the patient has reached maximum 
 
            medical improvement." (ex. 12).  
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to healing period benefits from June 20, 1986 to February 4, 
 
            1988, a period of 84.857 weeks.
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that claimant has sustained a 50 
 
            percent industrial disability to the body as a whole caused 
 
            by the injury of June 20, 1986.
 
            
 
                 The parties stipulated that the type of permanent 
 
            disability is industrial disability.  Dr. Bowman testified 
 
            that claimant sustained a 20 percent permanent impairment to 
 
            the body as a whole and that this impairment rating is 
 
            limited to the injury of June 20, 1986, and that this would 
 
            be in addition to any prior impairment that may have existed 
 
            for other reasons (ex. 87, p. 42).  Dr. Bowman's causal 
 
            connection opinion and impairment rating opinion is not 
 
            controverted, contradicted, rebutted or refuted by any other 
 
            medical evidence.
 
            
 
                 The doctor testified that he performed a bilateral mass 
 
            fusion of L4 to the sacrum with Luque instrumentation which 
 
            is a rectangular metal device to fix the back above and 
 
            below and hopefully prevent further slippage while the 
 
            fusion was maturing in his back (ex 87, pp. 17 & 18).  Dr. 
 
            Bowman testified that his back is solid, his fusion is 
 
            stable and no activity should jeopardize his fusion (ex. 87, 
 
            p. 33).  Dr. Bowman did not impose any specific 
 
            restrictions, but it is his practice to only give general 
 
            guidelines.  He told claimant to be active; don't be a couch 
 
            potato.  Avoid things that bother you, but not to the 
 
            exclusion of all activity.  He encouraged claimant to walk, 
 
            swim, be active, but avoid heavy lifting, bending or 
 
            stooping (ex. 87, p. 36).  
 
            
 
                 Dr. Bowman seemed to leave the question of whether 
 
            claimant could return to his former employment or other 
 
            employments up to claimant and vocational rehabilitation 
 
            specialists.  He stated that claimant is not permanently and 
 
            totally disabled from gainful employment from an orthopedic 
 
            point of view (ex. 87, p. 30).  He testified that claimant 
 
            did have fear about his ability to return to work and that 
 
            he did manifest pain magnification.  He stated claimant's 
 
            motivation was impaired, but not absent.  He felt claimant 
 
            would be doing something in the future (ex. 87, p. 38).  He 
 
            indicated that claimant should pick up the ball and 
 
            determine his own employability (ex. 87, p. 34).  
 
            
 
                 Claimant, born August 25, 1944, was 41 years old at the 
 
            time of the injury and 44 years old at the time of the 
 
            hearing (ex. 83, p. 2).  Claimant's disability is more 
 
            serious for the reason that it occurred during his peak 
 
            earning years.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., IAWC Decisions of the Iowa 
 
            Industrial Commissioner 400 (1989).
 
            
 
                 Claimant testified that he graduated from high school 
 
            in 1962 with average grades (tr. pp. 45 & 46).  Claimant is 
 
            intelligent and capable of training for other occupations if 
 
            he becomes motivated to do so.  Dr. Bowman felt that 
 
            claimant would do something new or different in the future 
 
            (ex. 87, p. 39).  Vocational rehabilitation counselors 
 
            suggested a number of interests claimant might pursue.  The 
 
            feasibility of retraining is one of the considerations used 
 
            in the determination of industrial disability.  Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).
 
            
 
                 Claimant's past employments have been farm laborer, 
 
            warehouse worker, bill collector, truck driver delivering 
 
            wholesale fruits and vegetables, and shoe store manager (tr. 
 
            p. 46).  Claimant started to work for this employer on 
 
            October 17, 1974, and performed almost every job in the 
 
            plant, such as; laborer, scale operator, material handler, 
 
            transfer car and side fork operator, and the shipping job 
 
            (tr. p. 52).
 
            
 
                 Based on claimant's subjective complaints, his 
 
            employability is extremely limited.  Claimant contends that 
 
            his sitting, standing, walking, bending, and stooping are 
 
            extremely limited.  He further contends that he has to lie 
 
            down three or four times a day for approximately 20 minutes 
 
            rest.  He also maintains that on his bad days he is not able 
 
            to work at all.  These limitations are not supported by any 
 
            medical evidence, in particular, Dr. Bowman, his treating 
 
            physician, who seemed to imply that claimant's limitations 
 
            were self-imposed.  He encouraged claimant to be active and 
 
            do as much as possible (ex. 87, p. 36).  
 
            
 
                 Jack T. Rogers, a vocational rehabilitation consultant, 
 
            determined that claimant was unemployable due to his 
 
            physical complaints (ex. 74, p. 3).  Rogers was hired by 
 
            claimant for an evaluation.  John W. Greene, Jr., a 
 
            certified rehabilitation counselor, was hired by defendant.  
 
            Greene set up a physical therapy and work hardening program, 
 
            but claimant discontinued the program.  Erick Alverio, a 
 
            licensed physical therapist, said that claimant was 
 
            frequently late, wore the wrong clothing contrary to 
 
            instructions and testified that claimant was uncooperative 
 
            and noncompliant (tr. pp. 40 & 41).  Previously, however, 
 
            another physical therapist, Stephen V. Benson, did not think 
 
            that work hardening would increase claimant's physical 
 
            capacities beyond what they were at the time that he gave 
 
            claimant a physical capacity examination (ex. 77, p. 4).  
 
            
 
                 Gene Maaske, claimant's friend, hired claimant to clean 
 
            cruise control parts in his auto parts business, but 
 
            claimant only worked less than half a day and was not able 
 
            to continue even though it was only light duty work (tr. pp. 
 
            222 & 223).  
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Claimant testified that he can no longer fish, hunt, 
 
            golf or bowl.  Claimant's wife testified that he can't 
 
            dance, play cards, or walk more than a block.  He walks with 
 
            a cane and sometimes falls (tr. pp. 207 & 208).  At the 
 
            beginning of the hearing, claimant walked to demonstrate 
 
            that his left leg limped while walking (tr. p. 42).  
 
            
 
                 At the same time, defendant took surveillance pictures, 
 
            exhibits 89, 90 and 91, which showed claimant working with 
 
            other men installing a cement sidewalk and steps in front of 
 
            his house.  Claimant, his wife, and a friend, Gary Mace, 
 
            testified that claimant did no physical work that day, but 
 
            rather the other men did the physical work.  Claimant only 
 
            brought buckets of water to clean the tools (tr. pp. 90, 
 
            214, 267, 270 & 292).  The photographs do not actually show 
 
            claimant engaged in work, but only being present.
 
            
 
                 Claimant testified that he earned $10 per hour after 12 
 
            years of employment with employer (tr. p. 82).  Greene 
 
            testified that claimant was capable of doing sedentary work 
 
            according to Dr. Bowman (tr. p. 117).  Greene specified that 
 
            claimant could do clerical work, such as a claims clerk, 
 
            receptionist, classified ad clerk, coding clerk, invoice 
 
            control clerk, and computer programmer.  Benson also felt 
 
            that claimant could perform sedentary work (tr. p. 123; ex. 
 
            77).  Greene indicated that claimant could start at $4 to $5 
 
            an hour performing office work and possibly $8 to $9 an hour 
 
            doing programming (tr. p. 135).  
 
            
 
                 Claimant testified that he looked for employment, but 
 
            he told the prospective employers that he had to lie down 
 
            three or four times a day and that on his bad days he would 
 
            not be able to work at all (tr. pp. 93-96).  Furthermore, 
 
            claimant admitted that he only applied for work at places 
 
            who were not looking for applicants at the time and he did 
 
            not seek the assistance of either of the vocational 
 
            rehabilitation counselors that had talked with him, more 
 
            specifically, Greene or Rogers.  
 
            
 
                 The full, true, and accurate extent of claimant's 
 
            permanent disability is difficult to determine because 
 
            claimant has not seriously looked for work, sincerely 
 
            applied himself to the vocational rehabilitation and work 
 
            hardening programs that were made available to him and has 
 
            not displayed any interest in any kind of retraining.  
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981).  Employers are 
 
            responsible for the reduction in earning capacity caused by 
 
            the injury.  They are not responsible for a reduction in 
 
            actual earnings because the employee resists returning to 
 
            work.  Williams v. Firestone Tire and Rubber Co., III Iowa 
 
            Industrial Commissioner Report 279 (1982).  Furthermore, 
 
            pain that is not substantiated by clinical findings is not a 
 
            substitute for impairment.  Waller v. Chamberlain Mfg. Co., 
 
            II Iowa Industrial Commissioner Report 419, 425 (1981).  
 
            
 
                 At the same time, Dr. Bowman pointed out that claimant 
 
            suffered a substantial legitimate spine disability, that he 
 
            has suffered depression which is common to long-term 
 
            disability patients, and suffered from a subjective chronic 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            pain management problem.  
 
            
 
                 Wherefore, based upon (1) the foregoing evidence; (2) 
 
            all of the factors used to determine industrial disability, 
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (Appeal 
 
            Decision February 28, 1985); Christensen v. Hagen, Inc., 
 
            vol. I, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (Appeal Decision March 26, 1985); and (3) 
 
            applying agency expertise [Iowa Administrative Procedure Act 
 
            17A.14(5)]; it is determined that claimant has sustained a 
 
            50 percent industrial disability to the body as a whole and 
 
            is entitled to 250 weeks of permanent partial workers' 
 
            compensation benefits.  
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is totally and 
 
            permanently disabled.  Diederich v. Tri-City R. Co., 219 
 
            Iowa 587, 593, 258 N.W. 899 (1935).  Claimant contended he 
 
            is an odd-lot employee.  The odd-lot theory was not pleaded 
 
            in the petition, was not raised at the prehearing 
 
            conference, and was not designated an issue on the hearing 
 
            assignment order. If odd-lot had been designated a hearing 
 
            issue, claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to the 
 
            odd-lot doctrine because he did not make a bona fide search 
 
            to find employment in the area of his residence.  Guyton v. 
 
            Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985); Emshoff v. 
 
            Petroleum Transportation Services, Inc., file 753723 (Appeal 
 
            Decision 1987); Hingtgen v. Goodman, IAWC Decisions of the 
 
            Iowa Industrial Commissioner (1988); Collins v. Friendship 
 
            Village, Inc., IAWC Decisions of the Iowa Industrial 
 
            Commissioner 151 (1988).
 
            
 
                                 medical expenses
 
            
 
                 The parties stipulated in the prehearing report that 
 
            the provider of medical services would testify that their 
 
            fees were reasonable and that the treatment was reasonable 
 
            and necessary treatment of the alleged work injury and that 
 
            defendant was not offering contrary evidence.
 
            
 
                  Claimant did prove injury arising out of and in the 
 
            course of employment with employer.  Therefore, it is 
 
            determined that claimant is entitled to the medical expenses 
 
            shown on his list of medical expenses with the exception of 
 
            the Continental Airlines ticket to Denver for the consulting 
 
            opinion prior to his bilateral lumbar fusion of L4 through 
 
            S1 in the amount of $260.  A second opinion is a reasonable 
 
            medical expense prior to such extensive surgery, however, it 
 
            is not reasonable to go from Council Bluffs, Iowa, to 
 
            Denver, Colorado, for such an opinion when it could be 
 
            obtained from reliable doctors in the Council Bluffs-Omaha 
 
            area.  Eliminating the airline ticket, the expenses total 
 
            $21,004.18.  Claimant is entitled to the payment of these 
 
            expenses to either himself or the provider of medical 
 
            services.  Defendant's argument that the medical was not 
 
            authorized is without merit.  Defendant denied liability for 
 
            the injury in its answer and also denied liability for an 
 
            injury at the time of hearing.  Claimant's cannot deny 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            liability and at the same time direct the course of medical 
 
            treatment.  Barnhart v. MAQ, Inc., I Iowa Industrial 
 
            Commissioner Report 16 (Appeal Decision 1981); Kindhart v. 
 
            Fort Des Moines Hotel, Vol 1, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 611 (Appeal Decision 
 
            1985).  The fact that employer made some payments after the 
 
            injury, is not construed as an admission of liability by the 
 
            defendant.  Iowa Code section 86.13.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained an injury to his back on June 
 
            20, 1986, which arose out of and in the course of employment 
 
            with employer.  Iowa Code section 85.3(1); McDowell v. Town 
 
            of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967); 
 
            Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
            N.W.2d 756, 760-61 (1956); Nicks v. Davenport Produce Co., 
 
            254 Iowa 130, 115 N.W.2d 812, 815 (1962).
 
            
 
                 That the injury was the cause of temporary disability 
 
            during a period of recovery.  Bodish v. Fischer, Inc., 257 
 
            Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 
 
            236 Iowa 296 18 N.W.2d 607 (1945).  
 
            
 
                 That claimant is entitled to healing period benefits 
 
            from June 20, 1986 to February 4, 1988.  A period of 84.857 
 
            weeks.  Iowa Code section 85.34(1).
 
            
 
                 That the injury was the cause of permanent disability.  
 
            Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 
 
            18 N.W.2d 607.
 
            
 
                 That claimant sustained an 50 percent industrial 
 
            disability to the body as a whole.  Lawyer and Higgs, Iowa 
 
            Workers' Compensation--Law and Practice, section 13-5.
 
            
 
                 That claimant is entitled to 250 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That injury was the cause of claimant's medical 
 
            expenses.  Iowa Code section 85.27.
 
            
 
                 That claimant is entitled to $21,004.18 in medical 
 
            expenses as itemized in the list attached to the prehearing 
 
            report, with bills attached, which covers all of the amounts 
 
            claimed except $260 for air fare to Denver round trip.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant eighty-four point eight 
 
            five seven (84.857) weeks of healing period benefits at the 
 
            stipulated rate of three hundred five and 50/100 dollars 
 
            ($305.50) per week for the period from June 20, 1986 to 
 
            February 4, 1988, in the total amount of twenty-five 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            thousand nine hundred twenty-three and 81/100 dollars 
 
            ($25,923.81) commencing on June 20, 1986.
 
            
 
                 That defendant pay to claimant two hundred fifty (250) 
 
            weeks of permanent partial disability benefits for a fifty 
 
            (50) percent industrial disability at the stipulated rate of 
 
            three hundred five and 50/100 dollars ($305.50) per week in 
 
            the total amount of seventy-six thousand three hundred 
 
            seventy-five dollars ($76,375) commencing on February 4, 
 
            1988.
 
            
 
                 That defendant is entitled to a credit for one hundred 
 
            fifty-six (156) weeks of workers' compensation benefits paid 
 
            to claimant prior to hearing at the rate of three hundred 
 
            five and 50/100 dollars ($305.50) per week in the total 
 
            amount of forty-seven thousand six hundred fifty-eight 
 
            dollars ($47,658).
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendant pay to claimant or the provider of 
 
            medical services twenty-one thousand four and 18/100 dollars 
 
            ($21,004.18) in medical expenses as shown in claimant's list 
 
            of medical expenses attached to the prehearing report.
 
            
 
                 That the costs of this hearing are charged to 
 
            defendant, including the cost of the attendance of the court 
 
            reporter at the hearing and the transcript of the hearing 
 
            provided to the deputy.  Iowa Code section 86.19; rule 343 
 
            IAC 4.33(1)(2).
 
            
 
                 Claimant also submitted nineteen (19) items of costs 
 
            attached to the prehearing report which total one thousand 
 
            two hundred thirty and 10/100 dollars ($1,230.10).  Most of 
 
            these costs are not allowable.  The following costs are 
 
            allowed and are charged to defendant at this time:  
 
            
 
                 1.  Of the MRC, Inc., evaluation dated November 25, 
 
            1987, in the amount of $345, claimant is allowed $150 as an 
 
            expert witness fee.  Rule 343 IAC 4.33(4).
 
            
 
                 2.  The follow-up report was made by James Rogers on 
 
            August 17, 1988, in the amount of $100 is allowed as a 
 
            medical report.
 
            
 
                 3.  Midlands Rehabilitation Consultants' medical report 
 
            on February 1, 1989, in the amount of $80 is allowed as 
 
            claimant's second medical report.  Rule 343 IAC 4.33(6).
 
            
 
                 4.  Claimant is allowed $27.54 for the court reporter 
 
            charges for the deposition of Ronald K. Miller, M.D. 
 
            
 
                 Claimant is limited to two medical reports and the 
 
            numerous other medical reports cannot be allowed.  The court 
 
            reporter expenses for three depositions from claimant, in 
 
            the amount of $103.86, $54.30, and $80 are not allowed.  
 
            These are considered trial preparation expenses.  Claimant 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            personally testified at the hearing at quite some length and 
 
            the introduction of three depositions in addition to his 
 
            testimony was neither reasonable nor allowable as a proper 
 
            cost of the hearing.
 
            
 
                 That defendant file any claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1, in 
 
            addition to a form 2a showing the amount of workers' 
 
            compensation benefits paid to claimant prior to hearing.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Shelden Gallner
 
            Attorney at Law
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            PO Box 249
 
            Council Bluffs, Iowa  51502
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51100 51401 51402.20 51402.30 
 
                                          52206 51802 51108.50 51402.40 
 
                                          51803 52501 52700 52907 53701 
 
                                          54100
 
                                          Filed February 28, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH D. ARRICK,            :
 
                                          :
 
                 Claimant,                :      File No.  826544
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            GRIFFIN PIPE COMPANY,         :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51100 51401 51402.20 51402.30 52206
 
            Claimant proved injury.  He fell on rough cement onto some 
 
            steel grated steps on his buttocks and aggravated his 
 
            preexisting spondylolysis with spondylolisthesis.
 
            
 
            51802
 
            Claimant awarded 84.857 weeks of healing period for dates 
 
            stipulated to by the parties for claimant's time off work.
 
            
 
            51108.50 51402.40 51803
 
            Claimant awarded 50 percent industrial disability.  Only 
 
            doctor to testify on causal connection said this injury 
 
            aggravated and accelerated claimant's preexisting condition.  
 
            The same doctor, the treating physician, awarded claimant a 
 
            20 percent permanent impairment rating.  Claimant could do 
 
            sedentary work, possibly more if he tried, but he made no 
 
            serious effort to find work, to cooperate with extensive 
 
            rehabilitation that was offered, or to engage in any 
 
            retraining of any kind.  Claimant had a bilateral fusion of 
 
            L4 through S1 with restrictions to be careful about heavy 
 
            lifting, bending and stooping.
 
            
 
            52501 52700
 
            Claimant awarded some $21,000 in medical expenses defendant 
 
            had refused to pay.
 
            
 
            52907
 
            Claimant awarded some costs and denied others.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            53701
 
            Surveillance photos did not show claimant actually engaged 
 
            in physical work, but he was present with workers installing 
 
            a new sidewalk and steps in front of his home.  He became 
 
            very flustered on cross-examination from the photographs and 
 
            from the questions asked.
 
            
 
            54100
 
            Claimant presented a case for odd-lot, but it was not 
 
            addressed because he did not allege it in the petition or at 
 
            the prehearing conference.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         CHARLES T. GRAVER,  	   :
 
                   		   :
 
              Claimant, 	   :
 
                   		   :
 
  	       vs.  	           :
 
                   		   :      File No. 826626
 
         LUCKY STORES, INC., d/b/a :
 
         EAGLES DISCOUNT SUPERMARKET,:
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
         	and 	           :
 
                   		   :
 
         NATIONAL UNION,     	   :
 
		                   :
 
              Insurance Carrier,   :
 
              Defendants.    	   :
 
         ___________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 18, 1990, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Mary M. Schumacher
 
         Attorney at Law
 
         491 West 4th Street
 
         Dubuque  IA  52001
 
         
 
         Mr. Thomas M. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Building
 
         Davenport  IA  52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 22, 1991
 
            BYRON K. ORTON
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            CHARLES T. GRAVER,	      :
 
   		                      :
 
                 Claimant, 	      :
 
		                      :
 
           		 vs.          :
 
                      		      :      File No. 826626
 
            LUCKY STORES, INC., d/b/a :
 
            EAGLES DISCOUNT SUPERMARKET,:
 
		                      :        A P P E A L
 
                 Employer,	      :
 
                      		      :      D E C I S I O N
 
           	 and 		      :
 
                      		      :
 
            NATIONAL UNION,           :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed July 18, 
 
            1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES T. GRAVER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  826626
 
            LUCKY STORES, INC., d/b/a     :
 
            EAGLE DISCOUNT SUPERMARKET,   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INS. CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                  INTRODUCSTION
 
            
 
                 This is a proceeding in arbitration brought by Charles 
 
            T. Graver, against Lucky Stores, Inc., d/b/a Eagle Discount 
 
            Supermarket, employer and National Union Fire Insurance 
 
            Company,, insurance carrier, defendants, for benefits as the 
 
            result of an injury which occurred on June 26, 1986.  A 
 
            hearing was held in Dubuque, Iowa, on June 27, 1990 and the 
 
            case was fully submitted at the close of the hearing.  
 
            Claimant was represented by Mary M. Schumacher.  Defendants 
 
            were represented by Thomas N. Kamp.  The record consists of 
 
            the testimony of Charles T. Graver, claimant; Judy M. 
 
            Stengel, rehabilitation specialist; claimant's exhibit A; 
 
            and defendants' exhibits 1 through 6.  The deputy ordered a 
 
            transcript of the hearing.  Both attorneys submitted 
 
            excellent posthearing briefs.  
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 That claimant sustained an injury on June 26, 1986, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 That the injury was the cause of temporary disability; 
 
            that claimant is entitled to temporary disability benefits 
 
            from June 26, 1986 to August 18, 1987; that claimant was 
 
            paid temporary disability benefits for this period of time; 
 
            and that temporary disability benefits are no longer a 
 
            disputed matter in this case at this time.
 
            
 
                 That the injury was the cause of permanent disability.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 That the commencement date of permanent disability 
 
            benefits, in the event such benefits are awarded, is August 
 
            18, 1987.
 
            
 
                 That the rate of compensation is $240.35 per week.
 
            
 
                 That claimant's entitlement to medical expenses have 
 
            all been paid or will be paid by defendants.
 
            
 
                 That defendants make no claim for credit for benefits 
 
            paid pursuant to an employee nonoccupational group health 
 
            plan prior to hearing.
 
            
 
                 That defendants paid claimant 59.5 weeks of temporary 
 
            disability benefits prior to hearing and 65 weeks of 
 
            permanent partial disability benefits prior to hearing at 
 
            the rate of $240.35 per week in the total amount of 
 
            $29,975.25.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether the injury was the cause of scheduled member 
 
            disability to the right arm or industrial disability to the 
 
            body as a whole.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent to which he is entitled.
 
            
 
                                 findings of fact
 
            
 
                    scheduled member or industrial disability
 
            
 
                 It is determined that claimant has sustained an injury 
 
            to the body as a whole and is entitled to industrial 
 
            disability.
 
            
 
                 Claimant testified that he slipped on a grape, fell and 
 
            injured his right shoulder.  He reported it to the office 
 
            girl and went to see Joseph G. Garrity, M.D. (transcript 
 
            pages 15 & 16).  Claimant reported this history to Dr. 
 
            Garrity who diagnosed a right shoulder contusion and 
 
            referred claimant to Scott C. McCuskey, M.D., an orthopedic 
 
            surgeon (exhibit C, pages 1 & 2).  Dr. McCuskey recorded 
 
            that claimant slipped and fell at work and jammed his right 
 
            shoulder.  An arthrogram demonstrated a rotator cuff tear of 
 
            moderate degree.  Dr. McCuskey diagnosed a rotator tear of 
 
            the right shoulder and performed an open rotator cuff repair 
 
            of the right shoulder with partial acromionectomy on July 
 
            16, 1986.  "The incision was outlined over the acromion and 
 
            on the anterior shoulder area." (ex. 4, p. 7).  Body parts 
 
            involved in the surgical procedure included the deltoid, 
 
            acromion, acromioclavicular joint, and biceps tendon.  
 
            Exposure of the shoulder joint disclosed a large transverse 
 
            rotator cuff tear.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Dr. McCuskey reported that four days after the surgery, 
 
            claimant stumbled and reinjured his right shoulder and he 
 
            performed a second arthroscopy on November 28, 1986 (ex. 2, 
 
            p. 9).  This arthroscopy confirmed a rupture of his rotator 
 
            cuff repair (ex. 2, p. 7).  A second repair of the rotator 
 
            cuff, right shoulder, was performed on December 5, 1986 in 
 
            the same areas as the previous surgery (ex. 4, p. 3).  
 
            
 
                 A third arthrogram was performed by Dr. McCuskey on 
 
            March 26, 1987.
 
            
 
                  ...it shows leakage of dye through the rotator 
 
                 cuff repair and indeed it appears that he has 
 
                 again partial pulling apart of his second rotator 
 
                 cuff repair.  While this is improvement over the 
 
                 first one, it leaves him with a shoulder that he 
 
                 cannot physically do any lifting, grabbing, 
 
                 reaching overhead or active use.
 
            
 
            (ex. 2, p. 5)
 
            
 
                 Dr. McCuskey then referred claimant to Mayo Clinic to 
 
            be seen by an orthopedist who specializes only in shoulders 
 
            and does a lot of shoulder type repairs.  (ex. 2, p. 6; tr. 
 
            p. 16).  
 
            
 
                 Brian F. Kavanagh, M.D., an orthopedic surgeon at Mayo 
 
            Clinic, performed a fourth arthrogram which confirmed, "...a 
 
            small tear, probably in the musculotendinous junction of the 
 
            cuff or over the biceps in the interval between the 
 
            supraspinatus and subscapularis;... (ex. 1).
 
            
 
                 Claimant was examined on July 27, 1988, by Matthew J. 
 
            Kirkendall, M.D., for a social security disability 
 
            determination.  The examination was focused on claimant's 
 
            right shoulder and the disability to the right shoulder (ex. 
 
            6, pp. 1 & 2).  Claimant testified that he also consulted 
 
            David Fields, M.D., who rendered an evaluation that he was 
 
            disabled so that claimant could invoke the waiver of premium 
 
            coverage for disability on his life insurance policy (tr. 
 
            pp. 58-60).  Claimant testified that Dr. Fields verified 
 
            that he was entitled to waiver of premium coverage for 
 
            disability.  There is no medical report from Dr. Fields -- 
 
            only claimant's testimony on this point.
 
            
 
                 The dividing line between the arm, which is a scheduled 
 
            member, and the body as a whole, is the glenohumoral joint 
 
            in the shoulder.  This is commonly known and the ball and 
 
            socket joint of the shoulder.  Body parts distal to this 
 
            joint are considered part of the arm.  Body parts proximal 
 
            to this joint are considered parts of the body as a whole.  
 
            Most of the body parts described by the doctor, the 
 
            acromion, the clavicle, the acromioclavicular joint, the 
 
            supraspinatus and the subscapularis, and portions of the 
 
            deltoid are all parts of the body as a whole.  The biceps 
 
            tendon is part of the body as a whole as well as the arm.  
 
            Therefore, all of the medical evidence describes an injury 
 
            to the shoulder parts which are portions of the body as a 
 
            whole rather than the arm.  Furthermore, shoulder injuries, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            are considered to be injuries to the body as a whole.  
 
            Rotator cuff injuries are injuries to the body as a whole.  
 
            Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 
 
            161 (1949); Nazarenus v. Oscar Mayer & Co., II Iowa 
 
            Industrial Commissioner Report 281 (1982); Godwin v. Hicklin 
 
            GM Power, II Iowa Industrial Commissioner Report 170 (1981); 
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
 
            
 
                 Even though, the impairment to the shoulder is measured 
 
            by the functioning of the arm, and even though the 
 
            disability is manifested by the use of the arm, 
 
            nevertheless, the injury, the surgery, the derangement, the 
 
            disability is to the right shoulder and right shoulder parts 
 
            which are portions of the body as a whole (tr. p. 17).
 
            
 
                 This case is distinguishable from Hike v. IBP, Inc. and 
 
            Webster Construction, Co., file numbers 764571 and 776652 
 
            filed November 3, 1989, for the reasons discussed above and 
 
            because this injury is predominantly, if not entirely, to 
 
            the shoulder whereas in Hike, the injury was near the 
 
            glenohumeral joint and not predominantly to parts of the 
 
            body as a whole.
 
            
 
                 Therefore, it is determined that claimant has sustained 
 
            an injury to the body as a whole and is entitled to 
 
            industrial disability.
 
            
 
                   entitlement to permanent disability benefits
 
            
 
                 Throughout claimant's treatment by Dr. McCuskey he 
 
            complained of popping, grinding, and gritting sensations in 
 
            his right shoulder.  He also complained of weakness and pain 
 
            (ex. 2, pp. 5-12).  
 
            
 
                 When Dr. Kavanagh saw claimant on May 21, 1987, he 
 
            recommended against further surgery.  He found that claimant 
 
            has excellent active use of the arm without objective 
 
            findings to indicate significant weakness or other 
 
            disability.  He told claimant he could lift up to 10 pounds 
 
            (ex. 1, p. 1).  Dr. Kavanagh's finding of excellent use of 
 
            the arm is irreconcilably inconsistent with his finding that 
 
            claimant can only lift ten pounds.  
 
            
 
                 Dr. McCuskey stated that claimant's clinical 
 
            improvement was not as good as Dr. Kavanagh's letter would 
 
            indicate because of clinically demonstrated loss of motion, 
 
            loss of strength and popping in the shoulder.  Dr. McCuskey 
 
            reminded that his third arthrogram still disclosed a small 
 
            tear even after the two surgeries.  He said, "...I'd be very 
 
            hesitant to have him stress this shoulder very much.  
 
            Therefore, while I am not considering it a good shoulder, I 
 
            would agree that the limitation of no lifting than greater 
 
            than 10 pounds above shoulder height would be appropriate."  
 
            (ex. 2, p. 2; tr. p. 16).
 
            
 
                 One year after the second surgery, Dr. McCuskey agreed 
 
            to make an evaluation.  He found a scar over the anterior 
 
            right shoulder, loss of muscle bulk along the deltoid, and 
 
            significant reduced range of motion.  Dr. McCuskey 
 
            concluded, "His physical impairment as opposed to his 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability is calculated using standard tables to be that of 
 
            26% of the upper extremity or 16% of the whole person." (ex. 
 
            2, p. 1).  
 
            
 
                 Dr. Kavanagh did not give an impairment rating; nor did 
 
            Dr. Kirkendall (ex. 1, p. 1 & ex. 6, p. 2).  Dr. Kirkendall 
 
            concluded, "...the patient demonstrated what is probably a 
 
            significant limitation secondary to pain and weakness at the 
 
            shoulder.  With his current symptoms, it is difficult to see 
 
            how he would function at his previous occupation." (ex. 6, 
 
            p. 2).  
 
            
 
                 Dr. McCuskey performed a functional capacity 
 
            examination on July 28, 1987 which showed that claimant 
 
            could lift and carry up to 10 pounds frequently but, he 
 
            could never lift or carry over 10 pounds.  He should never 
 
            reach above shoulder level.  He stated claimant could work 
 
            sitting, standing, or walking for eight hours per day.  
 
            Claimant could simple grasp, firm grasp or fine manipulate 
 
            with both hands.  Dr. McCuskey put a question mark in answer 
 
            to the question whether claimant could return to his former 
 
            job; but did indicate that he could return to other work 
 
            according to the restrictions defined above and that he was 
 
            able to work full time (ex. 2, pp. 3 & 4).  
 
            
 
                 From the foregoing information, it is determined that 
 
            claimant has a 16 percent impairment to the body as a whole, 
 
            that he is permanently prohibited from lifting or carrying 
 
            over 10 pounds; and that he is not to work with his right 
 
            arm over shoulder level.  The right arm is the dominant arm 
 
            (tr. p. 17).
 
            
 
                 Claimant testified, and his testimony was reasonable 
 
            and not contradicted, that Dr. Fields found that he was 
 
            entitled to waiver of premium coverage of his life insurance 
 
            because of his disability due to his shoulder.  
 
            
 
                 Claimant testified that he is not even able to lift an 
 
            eight-pound gallon of milk with his right arm (tr. p. 17).  
 
            Dr. McCuskey's notes indicate that claimant complained that 
 
            he could not even lift five pounds.  Claimant further 
 
            testified that his condition was getting worse in that he 
 
            was very sensitized to cold temperatures (tr. pp. 20 & 32) 
 
            and the slight bumps that he receives while driving or 
 
            riding in an automobile.  He testified that he avoids 
 
            driving or riding in an automobile (tr. pp. 18, 28 & 29).  
 
            Claimant further testified that it is very difficult for him 
 
            to write legibly with his right hand (tr. p. 23).  Even 
 
            though these complaints are not supported by the medical 
 
            evidence, nevertheless, this testimony is reasonable and 
 
            consistent with the other evidence in this case and there is 
 
            no opposing medical or nonmedical evidence.  Therefore, 
 
            claimant's testimonial statements are accepted as true.  
 
            Claimant added that simply pulling up the covers in bed can 
 
            hurt his right shoulder.  It is also painful if he rolls 
 
            over on it in his sleep (tr. p. 31).  Claimant stated that 
 
            he was last treated by Dr. McCuskey in December of 1987 (tr. 
 
            pp. 16 & 58).  He does not take prescription drugs, but 
 
            takes three or four ibuprofen tablets a day (tr. p. 32).  If 
 
            he swings his arm while walking it hurts (tr. pp. 33 & 34).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has sustained a very serious and disabling 
 
            physical injury.  Claimant's right shoulder was invaded four 
 
            times for arthroscopies (three times by Dr. McCuskey and one 
 
            time by Dr. Kavanagh) his right shoulder was operated on 
 
            twice for rotator cuff tears, and as of the last arthroscopy 
 
            claimant still has a tear in the right rotator cuff.
 
            
 
                 Claimant's primary employment prior to the injury was 
 
            as a stock person in a grocery store.  Over the years he has 
 
            performed every job in the grocery store except meat cutting 
 
            (tr. p. 20)..  Claimant explained in detail job by job why 
 
            he was no longer able to perform the various jobs he had 
 
            previously performed in the grocery store.  Dr. McCuskey 
 
            stated several times that claimant could no longer perform 
 
            his former job in the grocery store, "Finally, I don't feel 
 
            that with the kind of job that he has had in the past and 
 
            his current situation with his shoulder that he is going to 
 
            be able to return to that job level." (ex. 2, p. 6).  Most 
 
            of claimant's jobs in the grocery store required the use of 
 
            both hands and arms, the use of the right arm over shoulder 
 
            height, and the use of the right arm to lift more than 10 
 
            pounds (tr.pp. 20-23).  Claimant also contended that many of 
 
            the jobs require him to write legibly which he can no longer 
 
            do (tr. pp. 23, 25, 27, 30 & 60).
 
            
 
                 Therefore, from the foregoing evidence it is determined 
 
            that claimant is foreclosed from performing his former 
 
            employment as a grocery store stock clerk.  Rohrberg v. 
 
            Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 
            Report 282 (1984); Michael v. Harrison County, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 218, 220 
 
            (Appeal Decision January 30, 1979).
 
            
 
                 Claimant was examined by Ross K. Lynch, Ph.D., a 
 
            rehabilitation psychologist, on August 2, 1988, at the 
 
            request of claimant's attorney.  Dr. Lynch determined that 
 
            claimant's academic skills would not bode him well for any 
 
            type of formal vocational retraining.  Claimant did not test 
 
            well for assembly line work.  He determined that claimant 
 
            was suited only for sedentary work of an unskilled nature.  
 
            His clerical aptitude was well below competitive standards.  
 
            Dr. Lynch felt that he would be discriminated against by 
 
            prospective employers because of his age and disabilities as 
 
            a result of this injury.  He determined claimant sustained a 
 
            significant vocational handicap as a result of the 
 
            limitations imposed by the impairment of his right upper 
 
            extremity.  He found that over 90 percent of claimant's 
 
            potentially available labor market had been compromised 
 
            because of the loss of light and median jobs.  
 
            
 
                 Dr. Lynch said that basically claimant was limited to 
 
            work that requires verbal skills, seeing, hearing and only 
 
            occasional use of the hands and fingers.  He pointed out 
 
            that claimant was earning $9.50 per hour after 35 years of 
 
            employment essentially with this employer in a grocery 
 
            clerking capacity of one kind of another.  However, in the 
 
            jobs that were now available to claimant he could earn an 
 
            average of possibly $4.64 per hour. This constitutes 
 
            approximately a 50 percent loss of earnings.  He stated that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant's primary marketable asset, his physical ability, 
 
            had been compromised and that he would not be able to 
 
            compete with the numerous able bodied, better qualified 
 
            applicants for most positions.  Dr. Lynch's final conclusion 
 
            was that claimant's earning capacity had been diminished by 
 
            approximately 55 to 65 percent from his preinjury able 
 
            bodied status.  (ex. A).
 
            
 
                 Judith M. Stengel, a rehabilitation specialist, with a 
 
            bachelor's degree in social work, and with 11 years of 
 
            experience of working with injured workers, and who is a 
 
            qualified certified rehabilitation counselor (C.R.C.), 
 
            examined claimant at the request of defendants' attorney on 
 
            April 23, 1990 (tr. pp. 70-75).  Ms. Stengel submitted a 
 
            written report on May 1, 1990 (ex. 5) and testified at the 
 
            hearing in person.  She determined that claimant was capable 
 
            of light work even though light work means lifting up to 20 
 
            pounds.  She asserted that the jobs could be screened for 
 
            conformance with the 10 pound lifting restriction.  She 
 
            pointed out that there was nothing wrong with claimant's 
 
            left upper extremity and claimant had not seriously 
 
            attempted to compensate with the left arm for the loss of 
 
            the right arm.  She also pointed out that claimant had some 
 
            management experience as head stock man for two years when 
 
            he was third in charge of the store.  At one time he was 
 
            assistant store manager and had essentially the same duties 
 
            as the manager of the store and was often in charge of the 
 
            store.  Furthermore, he managed his own store in Galena, 
 
            Illinois for five months and four days in 1968 before he 
 
            determined that the venture would be unprofitable.  
 
            
 
                 In addition, Ms. Stengel pointed out that claimant 
 
            became active in union activities where he served for about 
 
            20 years as a steward and in executive positions.  He was 
 
            president of approximately a 700 member union for five or 
 
            six terms for a period of approximately 10 years and was 
 
            first vice-president of the ten-member executive board 
 
            serving about 1,500 members for an additional six or seven 
 
            years.  
 
            
 
                 In her written report, Stengel concluded that claimant 
 
            is precluded from returning to work as a stock clerk; that 
 
            claimant is employable; and that claimant is placeable.  She 
 
            identified 10 jobs that claimant could perform primarily in 
 
            management and sales.  She did concede that his employment 
 
            opportunities were reduced.  She stated that his job profile 
 
            after his injury would match 46 percent fewer workers 
 
            presently in the local work force.  However, the jobs that 
 
            he did qualify for would not result in any loss of wage 
 
            earnings based upon national statistics.  (ex. 5, pp. 1-9).
 
            
 
                 At the hearing, Ms. Stengel testified that she differed 
 
            with Dr. Lynch in his determination that claimant could only 
 
            perform sedentary unskilled work (tr. p. 89).  She felt that 
 
            he could perform light work with accommodations from 
 
            employers and compensation with the left hand on his part.  
 
            She pointed out that Dr. Lynch ignored claimant's management 
 
            experience and focused on his stock clerk experience.  She 
 
            pointed out that other workers, such as amputees, learn to 
 
            compensate out of necessity.  Stengel said that Dr. Lynch 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            proceeded on aptitudes as the result of tests whereas she 
 
            proceeded on aptitudes as a result of demonstrated 
 
            abilities.  She disagreed that his right upper arm was not 
 
            usable.  She pointed out that no physician has placed any 
 
            medical restrictions on his right hand or fingers and that 
 
            she felt that he could be trained to use a computer with his 
 
            wrists on an arm rest (tr. pp. 78-94).  She conceded that 
 
            even though there is a lot of light work available, it 
 
            occasionally requires lifting 20 pounds (tr. p. 97).  She 
 
            agreed that the loss to his right upper extremity was a 
 
            significant disability (tr. p. 102), but that he had not 
 
            received any occupational therapy nor had he tried to 
 
            compensate sufficiently when he did not obtain success when 
 
            he first tried (tr. p. 103).  She agreed that age was a 
 
            factor in employment, but it was less of a factor in order 
 
            to obtain supervisory work whereas, in those situations it 
 
            might be a benefit (tr. p. 104).
 
            
 
                 In conclusion, she agreed that claimant was precluded 
 
            from returning to his former employment of 35 years as a 
 
            grocery clerk primarily, but she maintained that he was 
 
            employable and placeable at a different occupation.  His 
 
            access to the labor market was reduced because of his work 
 
            restrictions, however, he should experience no loss of wage 
 
            earnings in the jobs that he is able to do.  She said that 
 
            claimant's employability would be increased by vocational 
 
            counseling, job seeking skills training and job development 
 
            and placement assistance.  (ex. 5, p. 9).
 
            
 
                 Claimant testified that when he was released to return 
 
            to work in 1987 that employer told him that he was not 
 
            eligible for any of the jobs at their place of employment 
 
            due to his restrictions.  Claimant agreed that it was the 
 
            company's policy not to accept any workers with any 
 
            disabilities (tr. pp. 19, 42, 43 & 61).  Employer's 
 
            inability to find any employment for a 35-year employee with 
 
            some management experience is some indication of the gravity 
 
            and seriousness of claimant's injury and disability.  It is 
 
            inconsistent for defendants to assert that claimant does not 
 
            have a serious disability and at the same time they are 
 
            unable to find any employment which he can perform.  2 
 
            Larson, Workmen's Compensation Law, section 57.61(b) at 
 
            pages 10-173-76.  At the same time, claimant has remained 
 
            active in his unemployment, walking three miles a day in the 
 
            mall, riding a bicycle (tr. p. 43), cooking for himself and 
 
            his wife and mowing the grass and training a dog (tr. p. 
 
            44).  He has not been able to hunt like he used to, garden 
 
            or clean the house (tr. pp. 35 & 57).  
 
            
 
                 Claimant acknowledged that he applied for social 
 
            security disability after he was not able to return to work 
 
            in 1987.  He was awarded benefits in January 1989 and back 
 
            pay to December of 1986 (tr. p. 35).  He testified that his 
 
            social security check is $804 per month and that his union 
 
            pension is $729 per month for a total income of $1,533.  
 
            When he was injured he was earning $380 per week and working 
 
            approximately four weeks and three days per month, which 
 
            results in earnings of $1,634.  By comparison, he was 
 
            receiving only about $100 less income per month then when he 
 
            was working full time.  If he were to return to full-time 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            active employment he would lose both of these disability 
 
            pensions for practically no gain, especially after tax 
 
            considerations.  Claimant, however, testified that this is 
 
            not the retirement he had visualized, because he cannot do 
 
            many of the things that he likes to do, and he cannot 
 
            fulfill his ambition of traveling around the country in a 
 
            motor home (tr. p. 34).  
 
            
 
                 Claimant conceded that he had made absolutely no job 
 
            search and had not tried to find a job through Job Service 
 
            because he did not feel that there was any work that he 
 
            could do (tr. p. 34).  He did contact the Job Training 
 
            Partnership Act people through Job Service and they tested 
 
            him for employability and never contacted him again (tr. pp. 
 
            63-65).  It is difficult to determine the full extent of 
 
            claimant's actual industrial disability because of the fact 
 
            that he has made no attempt to find any work of any kind, 
 
            even though both rehabilitation evaluators determined that 
 
            there were certain types of work that claimant could do.  
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981).
 
            
 
                 Claimant acknowledged that he did some supervision for 
 
            employer, but he did not like management work, requested to 
 
            be relieved of it, and became active in union activities 
 
            instead.  Claimant has, nevertheless, demonstrated 
 
            significant leadership abilities and management abilities 
 
            through his executive positions in the union for 
 
            approximately 20 years (tr. pp. 47-55).  Claimant had not 
 
            sought out any vocational rehabilitation assistance from the 
 
            State of Iowa or any other resource and defendants had not 
 
            offered claimant any vocational rehabilitation either (tr. 
 
            p. 63).
 
            
 
                 Claimant testified that he is no longer active in the 
 
            union.  He was forced to resign because he is no longer 
 
            employed (tr. pp. 62 & 63).  He insisted that he cannot 
 
            write with his right hand or pour from a pitcher or milk 
 
            carton with his right hand because of the shakiness, pain 
 
            and discomfort in his right shoulder.  He is able to feed 
 
            himself with his right hand at home, but at restaurants if 
 
            the tables are high he has to use his left hand (tr. pp. 
 
            66-70).
 
            
 
                 Claimant was 53 years old at the time of the injury and 
 
            57 years old at the time of the hearing (tr. p. 15). 
 
            
 
                 He has a high school education without any additional 
 
            formal education or training (tr. p. 51).  His very first 
 
            employment was as a turret lathe operator in a machine shop; 
 
            subsequently, he served in the army ordering ordnance 
 
            supplies (tr. p. 46).  All of his other experience has been 
 
            as a grocery store clerk of one kind of another with some 
 
            management and supervisory experience (tr. p. 48).
 
            
 
                 Claimant's loss of earning capacity in the middle 50's 
 
            is worse for him then it would be for a younger or older 
 
            employee.  McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Appeal Decision April 28, 1989); Walton v. 
 
            B & H Tank Corp., II Iowa Industrial Commissioner Report 426 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            (1981); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial 
 
            Report of the Industrial Commissioner 34 (Appeal Decision  
 
            1979).  
 
            
 
                 An injured employee's ability for retraining is one of 
 
            the considerations used in the determination of industrial 
 
            disability.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).  
 
            
 
                 At claimant's age and based upon his tests performed at 
 
            Job Service and with Dr. Lynch, it is determined that 
 
            claimant is not a good candidate for retraining or 
 
            re-education other than on-the-job training.  
 
            
 
                 Even though claimant was not planning on retiring or 
 
            thinking about retirement, nevertheless, as he puts it, he 
 
            was forced to retire, and his forced retirement income must 
 
            be considered in his motivation for making absolutely no job 
 
            search of any kind.  An employee's possibility of retirement 
 
            is one of the considerations used to determine industrial 
 
            disability.  Houseman v. Mid-American Lines, Inc., Vol. I 
 
            No. 4 Iowa Industrial Commissioner Decisions 888 (Appeal 
 
            Decision 1985); McDonough v. Dubuque Packing Co., Vol I. No. 
 
            1 Iowa Industrial Commissioner Decisions 152 (1984); Card v. 
 
            H & W Motor Express Co., Vol. II No. 1 Iowa Industrial 
 
            Commissioner Decisions 292 (1984); Fogle v. Dixon's 
 
            Wholesale Meats, Inc., Vol. II No. 1 Iowa Industrial 
 
            Commissioner Decisions 324 (1984).
 
            
 
                 Employers are responsible for the reduction in earnings 
 
            capacity caused by the injury.  They are not responsible for 
 
            a loss of actual earnings because the employee resists or 
 
            refuses to return to work.  Williams v. Firestone Tire and 
 
            Rubber Co, III Iowa Industrial Commissioner Report 279 
 
            (1982).
 
            
 
                 This decision agrees with the principles set forth in 
 
            Ryan v. University of Northern Iowa, file number 805629 
 
            filed June 29, 1989.  This case has some similar features 
 
            such as claimant's lack of motivation to seek employment and 
 
            distinguishing features such as claimant's permanent 
 
            restrictions to not lift more than 10 pounds.  This decision 
 
            disagrees with the argument in defendants' brief to the 
 
            effect that claimant's industrial disability should be based 
 
            on his actual income loss.  Industrial disability is based 
 
            on loss of earning capacity.
 
            
 
                 In conclusion, (1) based upon the foregoing factors; 
 
            (2) based on all of the factors used to determine industrial 
 
            disability, Christensen v. Hagen, Inc., vol. I, no. 3, State 
 
            of Iowa Industrial Commissioner Decisions 529 (Appeal 
 
            Decision March 26, 1985); Peterson v. Truck Haven Cafe, 
 
            Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (Appeal Decision February 28, 1985); 
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 
 
            251 (1963); and (3) based upon agency expertise [Iowa 
 
            Administrative Procedure Act 17A.14(5)]; it is determined 
 
            that claimant has sustained a 45 percent industrial 
 
            disability to the body as a whole and is entitled to 225 
 
            weeks of permanent partial disability benefits.  Claimant is 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            not permanently and totally disabled as contended by 
 
            claimant.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            legal authorities previously mentioned, the following 
 
            conclusions of law are made:
 
            
 
                 That claimant sustained an injury to the body as a 
 
            whole and is entitled to industrial disability benefits.  
 
            Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant has sustained a 45 percent industrial 
 
            disability to the body as a whole and is entitled to 225 
 
            weeks of permanent partial disability benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant two hundred twenty-five 
 
            (225) weeks of permanent partial disability benefits at the 
 
            rate of two hundred forty and 35/100 dollars ($240.35) per 
 
            week in the total amount of fifty-four thousand 
 
            seventy-eight and 75/100 dollars ($54,078.75) commencing on 
 
            June 18, 1987 as stipulated to by the parties.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendants are entitled to a credit for sixty-five 
 
            (65) weeks of permanent partial disability benefits paid to 
 
            claimant at the rate of two hundred forty and 35/100 dollars 
 
            ($240.35) per week in the total amount of fifteen thousand 
 
            six hundred twenty-two and 75/100 dollars ($15,622.75) as 
 
            agreed to by the parties in the prehearing report.
 
            That the costs of this action, including the cost of the 
 
            transcript, are charged to defendants 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 ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Ms. Mary Schumacher
 
            Attorney at Law
 
            491 W. 4th St
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport, Iowa  52801
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1803.10; 1803
 
                                          Filed July 18, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES T. GRAVER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  826626
 
            LUCKY STORES, INC., d/b/a     :
 
            EAGLE DISCOUNT SUPERMARKET,   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INS. CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803.10
 
            The rotator cuff injury was found to be body as a whole and 
 
            industrial disability was awarded.
 
            
 
            1803
 
            Claimant awarded 45 percent industrial disability.  He was 
 
            determined not to be permanently and totally disabled even 
 
            though he was awarded social security disability and was 
 
            accorded waiver of premium on his life insurance for 
 
            disability.
 
            
 
            
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM GILBERT,
 
         
 
              Claimant,                           File No. 826659
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         SECOND INJURY FUND OF THE                D E C I S I O N
 
         STATE OF IOWA,
 
                                                     F I L E D
 
              Defendant.
 
                                                    SEP 29 1989
 
         
 
                                                INDUSTRIAL SERVICES
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         William Gilbert against defendant employer Snyder Construction 
 
         Company, defendant insurance carrier General Casualty Companies, 
 
         and defendant Second Injury Fund of Iowa to recover benefits 
 
         under the Iowa Workers' Compensation Act as the result of an 
 
         alleged second injury sustained on July 1, 1986.  On September 
 
         15, 1987, a deputy industrial commissioner approved an agreement 
 
         for settlement between claimant and defendants employer and 
 
         insurance carrier, leaving only claimant's cause against the 
 
         Second Injury Fund of Iowa.  The matter came on for hearing 
 
         before the undersigned deputy industrial commissioner in Mason 
 
         City, Iowa, on December 19, 1988.  The matter was considered 
 
         fully submitted at the close of hearing.
 
         
 
              The record in the proceeding consists of the testimony of 
 
         claimant, claimant's exhibits 1 through 16, and defendant's 
 
         exhibits A and B.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy, the issues presented for resolution 
 
         include whether a causal relationship exists between claimant's 
 
         stipulated work injury, liability of the Second Injury Fund, 
 
         interest and costs, and the commencement date for permanent 
 
         partial disability if awarded.
 
         
 
                             REVIEW OF  THE  EVIDENCE
 
         
 
              Claimant testified to a severe injury suffered to his right 
 
         arm on June 9, 1977.  When he started a concrete saw inn 
 
         operation, the blade shattered and a piece struck him across the 
 
         right forearm, nearly severing the arm.  Despite the terrible 
 
         severity of this injury, claimant has been fortunate to regain a 
 
         great deal of function in that arm.  Of course, he has limited 
 
         movement with reduced strength and dexterity.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant also testified to the second injury that is the 
 
         subject matter of this dispute.  On July 1, 1986, claimant was 
 
         employed by Snyder Construction Company.  While wheeling a large 
 
         I-beam on two dolly carts, a wheel shifted on one cart.  The cart 
 
         shot out and struck claimant's left hand where he was holding the 
 
         I-beam.  The result was a severe crushing injury primarily to 
 
         claimant's long and ring fingers.  Claimant underwent surgery on 
 
         two occasions:  July 3, 1986 and February 19, 1987.  While both 
 
         surgical procedures were to the fingers, bone was harvested from 
 
         claimant's left wrist in the 1987 surgery to fuse the left ring 
 
         finger.
 
         
 
              Claimant currently complains that both fingers hurt upon 
 
         gripping or in the cold.  He has restrictions against climbing 
 
         and heavy lifting.  Claimant is concerned that he now lacks any 
 
         good hand and must be very careful about what jobs he can do.  
 
         For example, he does not trust himself in heights because of his 
 
         inability to trust his grip strength if he were to slip.  In 
 
         general, claimant stated that he believes he has approximately 
 
         one-half strength in each hand.  Although his left hand is the 
 
         dominant hand, he has problems performing chores such as turning 
 
         screws because the ring finger does not fully flex.  For the same 
 
         reason, claimant is unable to work carpentry jobs using a hammer.
 
         
 
              The record contains extensive medical records as to 
 
         claimant's left hand injury of July 1, 1986.  Radiologist Martin 
 
         W. Schularick reported on that date that there was a comminuted 
 
         fracture involving the diaphysis and distal epiphysis of the 
 
         middle phalanx bone of the ring finger.
 
         
 
              Upon presentation at St. Joseph Mercy Hospital, claimant was 
 
         evaluated by the emergency room physician and referred to T. 
 
         DeBartolo, M.D.  Dr. DeBartolo's surgical notes of July 1, 1986 
 
         show a preoperative diagnosis of crush injury to left hand with 
 
         extensive bony and soft tissue injury to the ring and long 
 
         fingers.  Operative procedure was described:
 
         
 
              Exploration, left long finger with flexor profundus 
 
              disrupture.  Zone II repair of profundus, left ring finger. 
 
              The patient had a severely comminuted distal middle phalanx 
 
              fracture with avulsion of his flexor profundus tendon.  The 
 
              distal middle phalanx fracture was stabilized with two 045 
 
              K-wires.  The flexor tendon was not repaired.
 
         
 
              Dr. DeBartolo's notes of January 6, 1987, show that 
 
         approximately six months post-injury claimant had full passive 
 
         flexion of the long finger and flexion of the proximal 
 
         interphalangeal joint of the long finger to approximately 95 
 
         degrees with full extension of the distal interphalangeal joint. 
 
         Active flexion, however, was at most 0-10 degrees.  Claimant had 
 
         full flexion of the proximal interphalangeal joint of the long 
 
         finger.  He also showed an angular deformity at the area of the 
 
         comminuted fracture of the distal aspect of the middle phalanx, 
 
         which eventually led to further surgery.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. DeBartolo performed that further surgery on February 19, 
 
         1987.  The operation was described as tenolysis of the left long 
 
         finger and corrective osteotomy bone grafting percutaneous 
 
         fixation of middle phalanx fracture, right finger with insertion 
 
         of continuous median nerve block.
 
         
 
              On May 12, 1987, Dr. DeBartolo noted that claimant was 
 
         essentially released from where he would have to guard his 
 
         activities and noted that he could truly be engaged in activities 
 
         as tolerated.  On July 14, 1987, Dr. DeBartolo summed up 
 
         claimant's status as follows:
 
         
 
              William had a severe crushing injury to his left hand.  That 
 
              injury resulted in extensive bony and soft tissue injury to 
 
              his ring and long fingers.  The injury occurred on the 1st 
 
              day of July of 1986.  The patient returns to the office for 
 
              his disability determination.  He has had a previous severe 
 
              injury to his right upper extremity and has received a work 
 
              comp impairment for that particular problem.  The patient's 
 
              radiographs today show that he has solidy [sic] united his 
 
              middle phalanx fracture long finger in which he has also 
 
              effused distal interphalangel [sic] joint.  He had a 
 
              complete evulsion of the profundus tendon from that finger. 
 
              Superficialis is intact.  On the long finger he had flexor 
 
              tendon repair then tenolysis and his hand function, given 
 
              the severity of his injury, is really quite good.  ROM right 
 
              side palmar flexion 57 degrees, dorsiflexion 49 degrees; 
 
              left side palmar flexion 70 degrees, dorsiflexion 75 
 
              degrees.  The patient's left long finger's proximal 
 
              interphalangeal joint motion is from -15 degrees to 83 
 
              degrees, distal and phalangeal joint motion from full 
 
              extension to 37 degrees. The ring finger's distal 
 
              interphalangeal joint is fused in 0 degrees of the 
 
              extension.  PIP joint is from 0 to 65 degrees. His grip 
 
              strength is 50, 46, 44, kg. on the left side, right side 32 
 
              kg.  He does not have a [sic] an extension lag, he has a 
 
              flexion lag because of the distal interphalangel [sic] joint 
 
              effusion on the ring where it's approximately 4 1/2 cm from 
 
              the distal palmar crease and on his long finger he's able to 
 
              get it directly down into the palmar crease.  The patinet's 
 
              [sic] permanent partial impairment then will be secondary to 
 
              loss of motion of his long and ring fingers. According to 
 
              the AMA Guide, taking the long finger first, his distal 
 
              interphalangeal joint motion loss would be 19% of the long 
 
              finger, PIP joint motion.  The loss would be 24% of the long 
 
              finger using the combined value chart that's 39% which is 8% 
 
              of the hand.  The ring finger distal interphalangel [sic] 
 
              joint fusion 45% of the finger PIP joint motion 21% of the 
 
              finer [sic] Combined values chart, 57% which is 6%o [sic] of 
 
              the hand.  That leaves him with a 14% of the hand. (Emphasis 
 
              supplied).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              As has been noted, Second Injury Fund of Iowa is the only 
 
         remaining defendant in this case.  The Second Injury Compensation 
 
         Act is set forth in Iowa Code section 85.63 et seq.  The language 
 
         of Iowa Code section 85.64 is crucial to the determination of 
 
         this case:
 
         
 
              If an employee who has previously lost, or lost the use of, 
 
              one hand, one arm, one foot, one leg, or one eye, becomes 
 
              permanently disabled by a compensable injury which has 
 
              resulted in the loss of or loss of use of another such 
 
              member or organ, . . . .
 
         
 
              There is no issue whatsoever as to whether claimant suffered 
 
         a first injury to one arm.  The determinative question in this 
 
         case is whether claimant's injury of July 1, 1986 resulted in the 
 
         loss or loss of use of "another such member or organ."  This 
 
         language refers back to the following, and only the following 
 
         specific scheduled members:  Hand, arm, foot, leg or eye.  That 
 
         is to say, did the crushing injury to claimant's fingers 
 
         constitute a loss or loss of use of the hand?
 
         
 
              In Simmons v. Black Clawson Hydrotile, 34th Biennial Report 
 
         of the Iowa Industrial Commissioner, 313 (App. Decn. 1979), the 
 
         industrial commissioner addressed the issue of whether one of 
 
         claimant's injuries was to the hand when the situs of the injury 
 
         and the subsequent surgeries were confined to the fingers.  In 
 
         that case, the commissioner found that claimant's disability 
 
         extended into the hand when it was shown that the flexion of the 
 
         MP or knuckle joints (metacarpal-phalangeal) was reduced.  Since 
 
         claimant's motion in the right hand had been impaired as the 
 
         result of the injury, the commissioner found the Fund liable.  In 
 
         the intervening years, any number of cases have found that the 
 
         second injury must be to one of the specified scheduled members 
 
         set forth in Iowa Code section 85.64.  See, for example, Stanek 
 
         v. Iowa Pork Industries, file number 800365, (Arbitration 
 
         Decision filed July 2, 1988) ("Had the legislature intended the 
 
         Second Injury Fund Act.to be triggered by the loss of the thumb 
 
         or another digit, it would have so stated.").
 
         
 
              An analysis of the medical documentation in this case 
 
         discloses that claimant's loss of motion afflicts his fingers. 
 
         There is no independent evidence indicating that the ailment 
 
         extends to the hand.  In Kellogg v. Shute & Lewis Coal Co., 256 
 
         Iowa 1257, 130 N.W.2d 667 (1964), the Court in a different 
 
         context (whether a leg injury extended into the body as a whole) 
 
         noted that claimant had the burden of showing that while the 
 
         trauma was limited to his leg, there resulted "an ailment 
 
         extending beyond the scheduled loss" of his leg or the use 
 
         thereof.
 
         
 
              It appears to the undersigned that one must distinguish 
 
         between an ailment extending into a greater scheduled member and 
 
         a functional deficit that also affects the greater scheduled 
 
         member. In this case, the ailment does not extend into the hand. 
 
         Obviously, the function of the hand has been substantially 
 
         reduced.  Claimant very credibly testified that he now has only 
 
         approximately half the grip strength in that hand as he had 
 
         previously.  It can scarcely be gainsaid that grip strength is 
 
         dependent upon the fingers.  The undersigned is of the view that 
 
         the relationship between fingers and the hand is so intrinsically 
 
         intertwined that a functional deficit analysis can be of no 
 
         benefit.  The Legislature has seen fit to list fingers and hands 
 
         as separate scheduled members and compensate loss accordingly.  
 
         By the same token, the loss of a hand obviously has tremendous 
 
         impact upon the functional usefulness of an arm or the loss of a 
 
         foot upon the leg, but the Legislature has again chosen to 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         schedule those members separately.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Many cases have dealt with the extension of a traumatic 
 
         injury into a greater member or the body as a whole.  Typically, 
 
         this has been where an injury to one member has actually created 
 
         a related ailment to the greater member or body, such as where 
 
         the limp caused by a foot injury directly causes an injury to the 
 
         back.  See, e.g., Garrison v. Sheesley Plumbing & Heating Co., I 
 
         Iowa Industrial Commissioner Report, 85 (App. Decn. 1980); Dailey 
 
         v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              It is also worthy of note that claimant's February, 1987 
 
         surgery did extend into the hand, in that the action of tendons 
 
         was examined and bone was harvested for the fusion.  Yet, there 
 
         does not appear to be independent disability resulting from this 
 
         surgical invasion.  It has been held that a skin graft from the 
 
         hip to the hand did not convert an injury from a scheduled member 
 
         to the body as a whole.  Lauden v. Walker Mfg. Co., I Iowa 
 
         Industrial Commissioner Report, 202 (1981).
 
         
 
              It might also be noted that Dr. DeBartolo assessed 
 
         claimant's disability in terms of the fingers, although that 
 
         disability rating was converted to the hand.  This is essentially 
 
         a mixed question of fact and law.  While the physician is not 
 
         competent to make a legal determination as to whether this injury 
 
         extended into the hand, it is noteworthy that he conceptualized 
 
         the injury as a finger injury as opposed to a hand injury.
 
         
 
              Based upon all of the foregoing, it is held that claimant's 
 
         injury of July 1, 1986 was to the long and ring fingers and not 
 
         to the hand.  Because the long and ring fingers do not constitute 
 
         "another such member" as contemplated in Iowa Code section 85.64, 
 
         there is no Second Injury Fund liability resulting from the 
 
         injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant suffered a severe injury to his right arm on 
 
         June 9, 1977.
 
         
 
              2.  Claimant sustained a crushing injury primarily to his 
 
         long and ring fingers while employed by Snyder Construction 
 
         Company on July 1, 1986.
 
         
 
              3.  Although claimant has sustained substantial disability 
 
         to his long and ring fingers by reason of the July 1, 1986 
 
         injury, the ailment does not extend into the hand.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1.  Claimant's July 1, 1986 work injury to his long and ring 
 
         fingers was not to the hand, and therefore did not result in the 
 
         loss or loss of use of "another such member or organ" as set 
 
         forth in Iowa Code section 85.64.
 
         
 
              2.  Because claimant's injury was not to one of the 
 
         specified scheduled members set forth in Iowa Code section 85.64, 
 
         the provisions of the Second Injury Compensation Act were not 
 
         triggered.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              The costs of this action shall be assessed to claimant 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              Signed and filed this 29th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            3202
 
                                            Filed September 29, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM GILBERT,
 
         
 
              Claimant,
 
                                                    File No. 826659
 
         vs.
 
                                                 A R B I T R A T I O N
 
         SECOND INJURY FUND OF THE
 
         STATE OF IOWA,                             D E C I S I O N
 
         
 
              Defendant.
 
         
 
         
 
         3202
 
         
 
              Crush injury to two fingers did not constitute injury to 
 
         hand, so "another such member" requirement of 85.64 was not met. 
 
         Harvest of bone from wrist for graft did not extend injury into 
 
         hand, since disability was limited to fingers.  Even though the 
 
         hand's function, especially grip strength, was reduced, the 
 
         injury and disability was to the fingers.  Since the relationship 
 
         of the fingers and hand is so interdependent, a functional 
 
         analysis was rejected in favor of determining whether the injury 
 
         or ailment itself extended to the greater member.